Alfa Leisure, Inc.Download PDFNational Labor Relations Board - Board DecisionsAug 27, 1980251 N.L.R.B. 691 (N.L.R.B. 1980) Copy Citation .FA-A LEISURE INC. hlI Alfa Leisure, Inc. ad Amalgamated Production Workers, Local 803, Allied Production and Novelty Workers International, AFL-CIO. Case 31-CA-8904 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MEMB RS JENKINS ANI) TRUEISI)AI I On January 30, 1980, Administrative Law Judge Burton Litvack issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Re- spondent filed a brief in opposition and cross-ex- ceptions with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. We accept the Administrative Law Judge's find- ing that the evidence does not establish that Re- spondent was motivated by union hostility in sus- pending and later terminating Frank Robinson. We also accept his finding that the decision to termi- nate Robinson was based on Robinson's rude con- duct toward Respondent's attorney at the meeting of April 5, 1979. Nevertheless, we cannot accept his conclusion that the termination was lawful under the Act. In our view Robinson's conduct, which might have constituted lawful grounds for discharge in other circumstances, was protected be- cause of the nature and circumstances of the April 5 meeting. The Union had been selected as bargaining agent by Respondent's employees on March 30, 1979, and the April 5 meeting was held for the purpose of commencing contract negotiations. Robinson was present at the meeting, with two other em- ployees and two business agents, to represent the Union. Earlier, Respondent had sent contract pro- posals to the Union, and at the start of the meeting the Union submitted its initial proposals. Discussion of specific proposals did not ensue because an argu- ment arose over negotiating in the absence of the union attorney. As the meeting was breaking up, Respondent's attorney turned to Robinson and said he had been informed that Robinson had been making threats to employees if they did not sup- port the Union. Robinson responded in a vulgar manner and asserted that the attorney could not 251 NLRB No. 88 prove the accusation. Respondent's attorney con- sidered Robinson's conduct "insubordinate," dis- courteous, and particularly offensive in light of the attorney's previous efforts to reduce discipline which had been scheduled for Robinson and to caution the union business agent about the way Robinson spoke to company representatives. He therefore decided to discharge Robinson. According to the Administrative Law Judge's findings, Robinson was an employee who, by per- formance and attitude, had tried Respondent's pa- tience and who had been previously disciplined for his failings. Yet, he had been selected by employees as a representative in the contract negotiations and he appeared at the April 5 meeting in this repre- sentative capacity. As an employee representative he was entitled to deal with management repre- sentatives as an equal and express his views openly at the bargaining session. He was not subject to dis- cipline in his employment relationship because his manner and behavior when he appeared as employ- ee representative did not comport with Respond- ent's standards of propriety.' We cannot conclude, as did the Administrative Law Judge, that Robin- son lost his protected status because the bargaining session he attended was not fruitful, or was coming to an end when he engaged in the conduct for which he was discharged, or because the accusa- tion to which he responded was not the subject matter of negotiations. Respondent chose to intro- duce at the bargaining session the accusation that Robinson was carrying on union activities in a co- ercive way and we view Robinson's response to the accusation as occurring in the context of bar- gaining. We conclude that by discharging Robin- son for conduct traditionally protected when oc- curring in a collective-bargaining setting, and which in fact occurred while Robinson was present solely for the purpose of collective bargaining, Re- spondent violated Section 8(a)(l) of the Act. 2 AMENDED CONCLUSIONS OF LAW The Administrative Law Judge's Conclusions of Law are amended as follows: 1. Insert the following after Conclusion of Law 3 and renumber the subsequent paragraphs: "4. By discharging Frank Robinson for rude con- duct he engaged in at a bargaining session, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act." ' e nolc that Robinslon as nlot refusing to oh) inllrucllons or orders il the perforniance (of hi, cmplosnmcnil duies anlld hi, discourles Ioxalrd Repondcnl' , agent did lnot (occur III h Ib arena or expos,. the agent to danger Cf Court Squaru Prc,. 1,,. 235 NLRB I( (It'178): Berni Wiholeah. Spo,rinr Goods (o. 188 NI R 373 (1'71). 2 See lawawiir Hauling Service. Ld ,. 2 1 NLRBH 765 1975) 692 DECISIONS ()F NATIONAL I.AB()R REI.A'I()NS BO()ARI) 2. Substitute the following for Conclusion of Law 5: "6. Respondent did not violate Section 8(a)(l) and (3) of the Act by issuing warning notices to and suspending employee Frank Robinson." AM NDI)) REMEI)Y Having found that Respondent terminated Frank Robinson in violation of Section 8(a)(1) of the Act we shall order Respondent to cease and desist from such conduct and to take affirmative action to ef- fectuate the policies of the Act, including offering Robinson immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prej- udice to his seniority or other rights and privileges previously enjoyed, and making him whole for any loss of earnings he may have suffered as a result of his unlawful discharge. The backpay shall be com- puted in accordance with the formula set forth in F W. Woolworth Company, 90 NLRB 289 (1950), with interest computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).: Further, Respondent will be required to preserve and make available to the Board, or its agents, pay- roll and other records to facilitate the computation of backpay due. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Alfa Leisure, Inc., Chino, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Promising benefits to employees if they with- draw pending charges before the National Labor Relations Board. (b) Discharging employees because they engage in rude conduct during bargaining sessions. (c) Discouraging membership in, or activities on behalf of, Amalgamated Production Workers, Local 803, Allied Production and Novelty Workers International, AFL-CIO, or any other labor orga- nization, by discharging employees. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the purposes and policies of the Act: (a) Offer Frank Robinson immediate and full re- instatement to his former position or, if that posi- : Sct. gcicrall.i Io, II:,nblhg & I luting (.. 13X N R 71 , l 621 Slt.ilc hr Jtki,,% \. c,llLi ,,1,ilt' Il ,, CtII accord vN I l his TigI"'ll11II opinill Ili ()Olhtwp, Afldil (orpruhnmml. 250 NI.RBl No II (t8() tion no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make Frank Robinson whole for any loss of pay he may have suffered as a result of his unlawful discharge in the manner set forth in the "Amended Remedy" section of this Decision and Order. (b) Preserve and, upon request. make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Chino, California, facility copies of the attached notice marked "Appendix. "4 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 31. in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS I:LR''ItI'R ORI)IRII) that the complaint be dismissed insofar as it alleges that Respondent issued warning notices to and suspended Frank Robinson because of his union or other protected concerted activities, that Respondent threatened to fire employees because they spoke favorably about the Union, or that Respondent threatened to lay off half the employees after an election. MEMBER TRUt-SDAI F, concurring in part and dis- senting in part: Contrary to my colleagues, I would adopt the Administrative Law Judge's dismissal of the com- plaint allegations concerning employee Frank Rob- inson's discharge. I believe that the majority, in re- versing the Administrative Law Judge on this issue, has misconceived both the bases for his rec- ommendation and the record facts that support it. My colleagues agree that Robinson was an unsa- tisfactory employee who repeatedly violated shop rules and was lawfully warned and disciplined for 4 In h c 1t tha ti Ilis ()rIr is cfrcc h a ludntinl a [ ilUd Sllcs (Colrt eof AW,n,;1. lII s t1 t ilt. In II iti c ll llg "lo.stcd hb ()ldcr f ll, N i,,a.li a .ll . Rlaklicms litad" 1.ha11ll ,cail > - IcI hirkiu- 'lilt Iil kl J dtlt gil'l () tl l rlitcdl Stlcs (Co r[ ol A\ pc.al, lflcilig .l ()rtlc ol ihc Naiwial I tll Rcktini,.s I ,ni'" Al.I:A I.EISURE INC' so doing. They also concede that the General Counsel failed to establish that Respondent was motivated by animus in suspending and terminating Robinson and they agree that the decision to termi- nate Robinson was based on his rude conduct toward Respondent's attorney on April 5, 1979. Indeed, my colleagues have little choice in making these concessions since the record conclusively es- tablishes that Robinson was teetering on the edge of discharge for cause long before April 5. In fact, the only thing saving him was Respondent's reluc- tance to risk a cause celebre by terminating an unsa- tisfactory employee who also happened to be a union activist. It is in this context that the events of April 5 must be viewed. According to the credited testimo- ny of Respondent's attorney, Moss, he decided to terminate Robinson after a heated exchange with the employee that morning. Moss' credited reason for so doing was his anger over Robinson's profane response to Moss which Moss characterized as "discourteous and insubordinate." Indeed, it is un- controverted that Respondent's concern over Rob- inson's contemptuous treatment of company repre- sentatives was genuine and longstanding and that Respondent previously had complained about it to the Union. My colleagues, in reversing the Administrative Law Judge and finding a violation, simply gloss over the fact that the incident that triggered the exchange between Robinson and Moss had nothing to do with bargaining or with Robinson's status as a representative for the Union at the April 5 meet- ing. As found by the Administrative Law Judge, information had come to Respondent's attention that Robinson had threatened employees with physical harm if they did not support the Union. Accordingly, as the April 5 meeting was breaking up, Moss took the opportunity to remonstrate with Robinson over that conduct, and Robinson in turn replied it was "bullshit" that the Company "can't prove." The long and short of it is that this is not a case where an employee has been discharged for intem- perate language or forceful advocacy of a bargain- ing or grievance position. Nor is it a case where an employer, during bargaining, has seized upon a remark or goaded an employee into an unwise re- sponse as a device to rid itself of a union activist or to chill the union enthusiasm of his fellows. Nor, as I read his Decision, did the Administrative Law Judge conclude that the case turned on whether or not bargaining was "fruitful" or indeed whether or not bargaining occurred at all. Rather, I believe the Administrative aw Judge concluded, and quite properly so, that Robinson's conduct on April 5 was literally "the straw that broke the camel's back," and that it mattered not a whit whether that conduct had occurred as the session was breaking up. or in the corridor outside the meeting place, or 10 minutes before the session began, or 10 minutes after it ended. Where the majority is wide of the mark and stretches the concept of protected activi- ty beyond the breaking point is in assuming that, merely because the exchange between Moss and Robinson on April 5 took place in proxiniry to a bargaining session, then for that reason, and that reason alone, Robinson should be insulated from the culminating consequences of his long term un- satisfactory conduct. Contrary to my colleagues, nothing in the Act warrants, let alone requires, such a result. APPENDIX No liICI TO ENiMP.OEt O IS POSI LI) BY ORDI)IR OF I Ht NATIONAI. LABOR Ri.l-A lONS BOARI) An Agency of the United States Government WE WILL NOT promise benefits to employ- ees if they withdraw pending charges before the National Labor Relations Board. WE WIll. NOT discharge employees because they engage in rude conduct during bargaining sessions. Wi VVWII.I NOT discourage membership in, or activities on behalf of, Amalgamated Produc- tion Workers, Local 803. Allied Production and Novelty Workers International, AFL- CIO, or any other labor organization, by dis- charging employees. WI wVill.. NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WtI Wliu.L offer Frank Robinson immediate and full reinstatement to his former position or, if that position no longer exists, to a sub- stantially equivalent position, without preju- dice to his seniority or other rights and privi- leges previously enjoyed, and wE. Wll i make him whole for any loss of pay he may have suffered as a result of his unlawful discharge. plus interest. AI iF.A Lt-ISURi, INC. DECIS()N S I I IN I ol1 Il C GAs. BLR ON Io l. .xc, Admilnistrative Las Judge: his case as heard beore mc ill Ontario, California, oni (Q; h94 IDECISIO)NS OF NATIONAL LABO()R RELAIO()NS H()OARD August 30 and 31, 1979, pursuant to a complaint issued by the Regional Director for Region 31 on May 23, 1979. pursuant to a charge filed by Amalgamated Pro- duction Workers, Local 803, Allied Production and Nov- elty Workers International, AFL-CIO, herein called the Union, on May 8, 1979. The complaint alleges, in sub- stance, that Alfa Leisure, Inc., herein called Respondent, violated Section 8(a)(l) of the National Labor Relations Act, herein called the Act, by issuing warning notices to, suspending, and ultimately discharging an employee, Frank Robinson, and Section 8(a)(1) of the Act by threatening an employee with a discharge if he spoke fa- vorably about the Union and by threatening an employee that employees would be laid off after a Board-conduct- ed election. At the hearing, counsel for the General Counsel was permitted to amend the complaint, alleging certain additional violations of Section 8(a) of the Act, including a threat to discharge an employee if he spoke favorably about the Union and a promise of benefits to Robinson if he were to withdraw the instant charge. Re- spondent filed an answer, denying the commission of any unfair labor practices. All parties were afforded full opportunity to appear, to introduce evidence, and to examine and cross-examine witnesses. Extensive briefs were filed by counsel for the General Counsel and by Respondent and have been care- fully considered. Based upon my examination of the entire record in this case and from my observation of the demeanor of the witnesses, I have concluded that certain witnesses presented by both counsel for the General Counsel and by Respondent fabricated portions, if not all, of their testimonies. In addition, I believe that docu- ments, which were admitted into the record, may have been either partially altered from their original forms or wholly fabricated. Accordingly, the findings of the fact below are based upon what evidence in the record I was able to credit.' FINDINGS OF FAC'r I. JURISDICTION Respondent, a corporation duly organized under and existing by virtue of the laws of the State of California, with an office and principal place of business located in Chino, California, is engaged in the manufacture of rec- reational vehicles. Respondent, in the course and con- duct of its business operations, annually sells and ships, goods or services valued in execess of $50,000 directly to customers located outside the State of California. Re- spondent admits, and I find, that Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. ' The crediting of portions of I he testimony of some itnlesses is re- quired under the circumstances If his case and does not require rejection of their entire clstimony Carolina 7 lners. Inc.. 213 NLRB 37 (1974) "Nothing is more common than to beliee sonme and not all of what a wilnes says." Edwardv iranlporitioln Company), 1 7 NL.RB 3, 4 (197(), enfd 437 F.2d 5(12 (Sh Cir 1971) 1. I.ABOR ORGANIZATION Respondent admits, and I find, that the Charging Party is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. ISSUES 1. Whether in the middle of March 1979,2 Respondent violated Section 8(a)(I) and (3) of the Act by issuing a written warning notice to Frank Robinson. 2. Whether on or about March 30 Respondent violated Section 8(a)(1) and (3) of the Act by issuing a warning notice to, and then suspending, Frank Robinson. 3. Whether on or about April 5 Respondent violated Section 8(a)(1) and (3) of the Act by discharging Frank Robinson. 4. Whether in the period February through July, Re- spondent engaged in certain other acts and conduct vio- lative of Section 8(a)(1) of the Act. IV. HI AI I.EGIL I UNFAIR ABOR PRAC'IICIES A. Background Respondent is engaged in the manufacture of travel trailers, which are sold at wholesale to dealers, at its plant in Chino, California. Johnnie Crean is Respondent's president, Kyle Jordan is the production manager, Mark Warmoth is the assistant production manager, George Stretch is the foreman in Respondent's service depart- ment, and Jeff Francis is Respondent's foreman over the test area." At any one time, Respondent employs be- tween 65 to 75 persons, with approximately 10 to 12 in- dividuals assigned to each foreman. On October 21, 1977, the National Labor Relations Board conducted a repre- sentation election among certain of Respondent's em- ployees. Objections were filed to that election, and Re- spondent and the Union ultimately stipulated to a rerun election, which was scheduled for March 30. The record establishes that significant activity on behalf of the Union occurred at Respondent's plant during February and March; however, there is no credi- ble evidence that any one employee assumed a leadership role in the campaign more prominent than any other em- ployee. Thus, while Frank Robinson testified that his union organizing activities during this period consisted of attending preelection union meetings at an American Legion hall and speaking in support of the Union to other employees during lunch and breaks at the plant, other employees, including Chester Robinson, Frank Robinson's brother, and William White, also testified that they were active in support of the Union, attending union meetings and speaking in support of the Union to other employees at the plant. While there is no evidence of a single, leading union adherent, Warmoth testified that, by the end of February, he and Francis were aware All dates herein are in 1979 ules lherwise specified In1 its answer. Responldent admits, and I find, that Crean, Warmoth, Jordan, and Stretch were supersisors withing the meaning of Section 2(11) of the Act As productimil manllager Kyle Jordan is responsible for all aspects, including personnel picy. of the proiductionl process. Ac- cording to Warmoth, his assistant, Jrdan mainly handles the paperwork and leaves direct personnel contact Warmolth AL.FA LEISURE. INC h')S 5 that Frank Robinson was involved in the union cam- paign, believed that he was a leader of it, and took no disciplinary action against Robinson because of this. 13. Robinson lv Employmrent IIstory arnd Events Through March 26, 1979 The record reveals that Frank Robinson was em- ployed by Respondent on three separate occasions, with his last period of employment commencing in September 1978 and lasting until April 5, 1979. During this latter period. Robinson was employed as a leadman under Jeff Francis in the test department. Respondent contended that disciplinary problems involving Robinson began in late January, commensurate with the start of the union activity. Kyle Jordan credibly testified that on January 24 Robinson was absent from work and, in violation of the shop rules,4 did not report his absence to Jordan that morning. s While Robinson could not recall either being absent on that date or not reporting his absence to Jordan, examination of his timecard for the payroll period including January 24 reveals that Robinson was, indeed, absent from work on that date. Examination of this timecard also reveals that Robinson reported for work on January 25 and clocked out at 3:32 in the after- noon. Jeff Francis. whose demeanor was that of an honest and forthright witlness, credibly testified that, due to a scheduled dental appointment that afternoon, at 3 p.m. he notified Frank Robinson that the latter would be left in charge of the department and instructed Robinson to make sure that a trailer was finished for shipment before he left work. Francis credibly testified that on January 26 he discov- ered that Robinson had left work at approximately 3:30 the previous afternoon. leaving someone else in charge to make sure that the trailer was finished. According to Francis, he spoke to Robinson, asking the latter why he had not followed Francis' instructions, and Robinson re- plied that he did not feel like working overtime. Robin- son did not recall either being left in charge of the de- partment on January 25 or leaving early and did not deny this conversation with Francis. After speaking to Robinson, Francis reported the incident to Warmoth. Further, because he felt a reprimand was due Robinson over the incident, he reported the incident to Jordan and requested Jordan to prepare a reprimand for Robinson. 6 4 The record eslablishes thai Respondent has had written work rules since 1975. While Crean and Jordan contradicted each other, inasmuch as he is directl responsible fr such matters. I credit Jordan that hese shop rules were posted around the plant in November 1978 and remained posited until April or May 1979, when these same shop rules. with some variation. were published in an emplohee handbook While Frank Robin- son denied knowledge of the existence of any shop rules prior Io March, for reasons hich I discuss elsewhere in this Decision I do not credit Robinson in this regard Rather. I believe. at all times material herein Robinson was aware of Respondent's employee shop rules The only work rule which I believe is material herein warrantsl employee discipllue for "frequent tardiness or absence from work UitHhout proper authoriza- tin or reasonable cause " I Accordillg it) Kyle Jordan. s hnom I credil i this regalrd. abscnt em- ployees, n the day of their absence are required io persuollal IIl tif Kyle Jordan ahout said absences " Upoti recoimmenidatirts from oscr Iletel supervisor. K)le Jordal is Respondent's maniagement official responslhle fr issuilng rittcnll arl lg notices aid confrontling eiploecs s lh such discipliln According lto Jordan, he is the on1ls official uthorized to issue riltens arnilig notlice Jordan, who averred that Robinson was a good em- ployee, gave rather vague, contradictor . and confusing testimony as to the events of Januars 25 and 2. Jorda identified Respondent's Exhibit 3 as a wkarning notice which he gave to Robinson after speaking to Francis Robinson did not deny receipt of such a warning notice. The document is dated January 25 and reads as follows: Failure to call in your absence also failure to advise your supervisor when you leave W\ork early- Frank-you left work early on Thurs. su/o advis- ing your foreman-Also you were absent Wed. 1- 24 and failed to call in- In the future make sure a supervisor knows where you are-thanks. Examination of the document reveals that the first para- graph is written in a lighter color ink than the remaining two paragraphs. Regarding the above document, Jordan testified, "[Francis] brought to my attention that [Robinson] had left early and without his permission or without his per- mission. That it had happened in the past and he just now brought it to my attention and he s atied to know, if he could do something about it." Jordan conltillnued, stating that the document was prepared on "the folio - ing day on the 25th" and that he "wrote it on the 25th- the day I looked at his timecard. When his timecard was not there and he did not call in, that's the time I wrote it." Moreover, Jordan testified that he discussed the doc- ument with Robinson when the latter returned to vwork-on January 25. According to Jordan, "I talked with Frank in regard to his absence and not calling in, and he advised me that he went to court with his court appearance for his younger brother. Then I implied that he must call in his absence if he was going to be gone, or advise his supervisor if he was going to be gone which he didn't do which put him in violation of shop rules. Also indicating on the verbal notice that he had left without his supervisor's knowledge and that left arly. and the supervisor did not know where he was and being responsible for him, he again was in violation of shop rules." Regarding the two different color inks, Jordanl denied that he wrote the last two paragraphs at a later time, stating that he wrote the document at "one sitting. and I wrote it complete." Finally, on redirect examina- tion. Respondent's labor relations counsel, Herbert A. Moss, asked Jordan why Respondent's Exhibit 3 as given to Robinson. Jordan replied, "[W]hen he left work without notifying the supervisor. This is when the super- visor had gone to the dentist." Respondent alleges that Frank Robinson received a second formal warning notice after an incident which oc- curred on February 12. According to Mark Warmoth. ad i111 enployec is hlsul As slio 11% a copy ) oI l l}, uO rll ii su.I;1ng l.ult. .hich he receDs e, Again. hil (Cre;i ad Jrda.in t.illt ill is rg.ard. I credil Jordal th;i ot l l enlcl e c i lCrp.l l s [r.qlllr. \cq I tlL .itici u. rilIg Ioticets Rather. according I, Jerd,11it. ,I l1 i cI mll pli, ec 'silt e 1 . s rti ten Clork rule sll he he gien i il xri mlte I nitice t1oreo. er. .il.Cldmilg to Jordan, three suth sritlen notItics. coniiinic grouuIds ti r I nrltnedlltc ticr- nllall n All A LEISURE. INC tO) h96 tI)tCISI()NS ()Of NATIONA. .ABOR REIATI()NS BOARD whom credit its to this incident, Robinson approached him that morning and said that he wanted to go to court with his brother. Warmoth told Robinson to check with Jeff Francis iasintich as Francis was Robinson's immedi- ate supervisor and would have to make the decision whether or not to permit Robinson to go. Jeff Francis credibly testified that Frank Robinson came over to him while iFrancis vi as supervising an electricl short circuit in a trailer. Robinson said that his brother was going to court on a robery charge and that he wanted to go. Francis replied that he did not think such vas necessary. Robinson slated that Warmlth had already given him permission; Francis replied that there was nothing more he could say A short while later, after not being able to locate Robinson in the plant and upset that Warmoth had gone behind his back to give permission to Robinson to leave, Francis spoke to Warmoth and asked him where Robinson was. Warmoth replied that he had sent Robin- son to Francis to ask for permission to leave the plant. Francis replied that he had not given Robinson permis- sion to leave, and they both went looking for Robinson but were unable to find him. Thereupon, because Robin- son had left the plant ithout permission and had, indeed, lied about receiving permission to leave. War- moth went to see Jordan and asked that a warning notice be prepared for Robinson. Frank Robinson, who, I believe upon his demeanor while testifying and the record as a whole, fabricated most of his testimony, 7 testified that he went to court on February 12 ith his brother, and asserted that he re- ceived permission from Mark Warmoth to leave work early. According to Robinson, he spoke to Warmoth the night before, aind the latter gave him permission to take the entire day off to go to court. During his testimony, Robinson denied that Warmoth had instructed him to check first with Francis about leaving and could not recall working at all on the morning of February 12. Later, however, Robinson admitted punching in at 6:52 a.m. on February 12 aid punching out 2 hours later and admitted telling no one that he was leaving. Finally, Robinson asserted that he told Francis that Warmoth had given him permission to work 2 hours and leave and that Francis replied that such would be all right. Kyle Jordan testified that Francis spoke to him on February 12, advising Jordan that Robinson had left early without permission and that such had left him in a bind. As a result, Jordan decided to issue Robinson a formal warning notice, which was based upon Robinson leaving work early without permission. According to Jordani, he gave the warnilng notice to Robinson the next morning after Robinson reported for work. Jordan testi- fied that he told Robinson he was in violation of the company rules anid "you have gone over and done the same thing . . . and this can't go on . . . [W]e have to comply with the rules." Robinson replied that this was a bunch of balonce that the violation was not all that big and that "it lidn't warrant having this in his file." While being unable to recall this meeting with Jordan, Robin- T 'hrc.cr rnallcrtal heriln I ,hill trcdil tic t ie c no(l y tl I liank Robh illsn rll 0 Iri} titr '11tChl (ts11illaI\ I uliecle d h) RetpoldCIi (or /" llen coIr- roboralcd h, thtl- ttlllle 1 ll son specifically denied receiving a written reprimand for leaving without permission on February 12. Jordan identified Respondent's Exhibit 5 as the warn- ing notice. which he drafted on February 12, and which he gave to Robinson on February 13. The body of this exhibit, which is dated February 12. 1979, reads as fol- lows: Violation of Shop Rules ... leaving w /o permis- sion You left w/o advising your Supervisor. This is in violation of shop- Frank - when ever you leave the job for any reason, notify your foreman-he is reponsible for all of his people and must know where they are- However, on cross-examination, Jordan was confronted by counsel for the General Counsel with a document which Respondent's Labor Attorney Moss was suddenly able to locate in Robinson's personnel file and which was marked as General Counsel's Exhibit 7. The document, which is dated February 12, 1979, reads as follows: Leaving work w/o advising your Supervisor- Frank, I know you went to court w/Chet-Howev- er, in the future advise your foreman when you are going to be gone- Jordan identified General Counsel's Exhibit 7 also as a warning notice, which was issued to Robinson on Febru- ary 12, and averred that he gave Robinson two warning notices on February 12. When questioned by counsel for the General Counsel its to whether the two notices re- ferred to different incidents, Jordan replied, "1 don't know that they relate to two different incidents; one is when I testified to the fact that he talked to his foreman - his foreman talked to him regarding he had to go to the dentist, and that he wanted to stand by and next one refers to him going to court with his brother." When next asked to identify the incident referred to in the Jan- uary 25 warning notice, Jordan vaguely responded, "Leaving without notifying your supervisor. I don't know what you are referring to." Finally Jordan asserted that the incidents, to which the two February 12 warn- ing refer, occurred on the same day "or he [Robinson] wouldn't have been written up for two things." ()n redirect examination. Jordan's testimony regarding the two February 12 warning notices and, indeed, the January 25 warning notice became more confused. Thus, on being asked a leading question by Moss, Jordan averred that both warning notices were incorporated into Respondent's Exhibit 5 and that General Counsel's Exhibit 7 was replaced by Respondent's Exhibit 5. When asked for the reason, Jordan testified, "Because I brought Frank in at one time to talk to hint in regard to the vio- lations that he was in violation of in the shop rule, re- garding one, his supervisor's report to me that he had left work early, and the other, when he said that he was going to court with his brother, and then the other one when he did not call in his absence. There were three actual violations on one paper here is what I talked with him about." When asked by me to, specifically define what three incidents were remedied by Respondent's Ex- ALFA I FISURF, INC 6u hibit 5, Jordan testified that the first concerned Robinson not reporting his absence and that the third referred to Robinson leaving work early after his supervisor had gone to the dentist. Finally, when questioned as to why two separate warning notices were necessary. Jordan averred, don't know why we didn't do it on one doc- ument. I called him in for violations as they occurred and talked to his supervisor, and then I went back and talked to Frank again. In the course of the day's work I talked to him again. So as far as getting it all done in one shot, I don't really know." Respondent alleges that a third warning notice was issued to Robinson on March 24, again based upon his failure to either notify or receive permission from his su- pervisor prior to leaving the plant during work hours. There is no dispute that the precipitating incident for this alleged warning notice was a March 23 motorcycle acci- dent, involving Chester Robinson. The accident occurred on railroad tracks near the plant. Thereupon, Robinson's sister drove to the accident site, they placed Chester in the front seat and the damaged motorcycle in the trunk of the car, and the three of them drove into the plait parking lot. According to Frank Robinson, it was his in- tention to accompany his brother to the hospital. There- fore, he encountered Warmoth in the back of the plant, where employees Harry Smith, Bill White, Donny Fisher and others were standing and listening, and requested permission to take Chester to the hospital and drop off his motorcycle. Warmoth replied that Robinson would have to check with his supervisor. Accordingly, 5 min- utes later, with the same employees standing nearby and listening. Robinson spoke to Francis at the gate in the rear of the plant building. Robinson asked if he could take Chester to the hospital, and Francis replied, "that there was no problem, that [he] could go." According to Robinson, he proceeded back to the car, and they drove to the hospital. Neither Smith. White, nor Fisher cor- roborated these conversations. Chester Robinson materially contradicted his brother as to the events of that morning. Thus, according to Chester, after driving into the parking lot, employee Kenny Smith was summoned to bring Jordan and War- moth out to see what had happened. A few moments later, employee Smith brought Jordan and Warmoth out to the car where everyone cursorily examined Robin- son's injured leg. Frank Robinson asked Jordan if he could go to the hospital with his brother to make sure that everything was all right. According to Chester, Jordan replied that Frank would have to ask Francis for permission. Meanwhile, Francis was standing approxi- mately 60 feet away near a construction building, and, according to Chester, Frank had to walk over to Francis in order to speak to the latter. At this point, Chester's testimony became internally inconsistent and rather con- fusing. Thus, on direct examination. Chester testified that, although his brother and Francis were 60 feet from the car, he heard Frank ask if he could go to the hospital and, although he did not hear Francis' reply, he saw "Jeff nod yes." On cross-examination. ho wever Chester changed his testimony and asserted that he overheard the words used by both Francis and his brother. According to Chester, "Frank went up to Jeff aid he asked him if it was all right if he could go to the hospital with me; that he was worried about me . . Jeff says well. a long as you come back afterwNards. ou know, like it's fine, and he said yes.'" xplainig how he overheard this conversation which occurred 60 feet from the car. Ches- ter asserted that his brother \was talking as he ,\as w,.alk- ing toward Francis. Jeff Francis credibly testified that., while standing at the plant back fence near the metal department. he ob- served a car pull into the parking lot. that Frank Robin- son got out of the car and velled thal he v as gig to the hospital, that Robinson ot hack into the cr antil it immediately pulled out of the parking lot, and thai nel- ther did Robinson ask permission to leave nor did : an cis give Robinson permission to leave ft'r- lh hospital Mark Warmolh denied that Robinson e'\ver asked pernmis- sion to go to the hospial ith his hrother, alld credibl testified that Francis came over to hint at about I p ill. anid said that! Frank Robinson was gonei again W armnilli asked him if he had given pcrmission and Franlis said no. Warmoth then asked if Francis had ldenied permis- sion for Robinson to leave. and Francis replied that he had just said nothing. As a result, according to U'ar- moth, he reported the incident to Jordan. arid the to of them went over the facts and decided to ive Frank Robinson aother vwarning to impress upon him the nte- cessity to follow the companl rules. Kyle Jordan credibly testified that Frank Robinson was summoned to his office in the morning of Mlarch 24 When Robinson arrived, Jordan infornled himii that hce (Robinson) was being gien a warning notice for the prc- vious day for leaving without permission aid for insuh- ordination. The short conversation then ended, with Jordan handing Robinson the \warning notice and inform- ing him that it was the second warning in his personinel file for leaving w-ithout permission. Jordan further credi- bly testified that Robinson returned to his offic at or about noontiie and appeared to be highly upset. Robin- son stated that the Nwarning notice was unfair, aid Jordan asked him vwhy. Robinson replied that he \\;it upset ocr his brother the previous day and had not been insubor- diante with anyone. After considering v hat Robinson had said, Jordan stated that he would take what Robin- son said under consideration, that he would destroy the first warning notice, and that he would draft a second warning notice, deleting reference to Robinson's insubor- dination. Thereupon, with Robinson in his office, Jordan ripped up the first warning notice I Accordinlg t1( Frank Rohiri,l hT ;i,,s ,illtled Illt Jlqaill tlit at iprroximlan i 7 .rn oin i Marth 24 Jordan i ft' 1 ILtcidi Rliirii 11hi l IL Illtr %ias , ing isin t ',t . 5 rlili rril,.mnd tfor ct ,rg \ th llhtl IrI11,s stioll andi fo l no clocking o l il rch 231 Roh ,on rcphtilcd ,ilh a I. lhil .iloll auiCItlg IlIIt I :ra iln s gl%' hi,1 l 1rnliiOnI lo CA . , tII iIl JMti C% oti 1s i illllt thai *.:lrmiioih klict thlal Rohi o lo urlhl cr It',llh l- tjiill It( ihc1 lcIfl offli- hill rtt irnitd la(ter thei m11 orniiiit il l a.lvpprl i\nliJt l l:30 Accordinig o Rohllo ll. Jordall sltlct tJl.l l had di,-oercd th.at 1:` ilk Rhbi iti tilLd lat ptrrll'11 lll ti -I\ I t lll 1 I lIill aIrid tJl.i 11I lilr-c pi ll I,'Ieid h1ii i tlit ,l .s xrIt h11 u ll R tli S.1 1 in i 1iiii I l, l lh %S-L' AlT1tIn llt~II. R hilflMq/ g\k a, , I dllk'rt \ tR'iln- h * 1 til s ste- ~rd . Matridll 24 Ii'll.L;5lli1ll I1l~ R ) il1S e l lt I el/I Il Ilt 1Jl ljmIl I[oll i 11,, hL, \l;., I1n't plkll lg Oi i hc.Il' . l \ 1lI ,. I. l , hill t IIh i tilnt Iw ALA EISURE, N W' I)LFCISI)NS ()F NAII()NAL I.A()KR RIATIO()NS ()ARI) Jordan identified Respondent's Exhibit 6 as the second w%;arning notice, which he drafted after Robinson left his office on March 24. Ihe body of the warning notice reads as follows: Violation of shop rules--Failure to clock out when Icaving company premises- Due to an accident your brother Chester had. you left the premises without clocking out or noti- fying your supervisor as required. This is the third X iolation of this type -- I personally talked to you because of the circum- stances involved. Further violations could result in your termination. Jordan credibly estified that the words "old warning discarded" hich appears on the bottom of the docu- ment refer to the fact that the original warning notice, which stated that Robinson had been insubordinate, had been destroyed and that this warning notice was never shovn1 to Robinson. Mark Warmoth testified that he had a conversation with Frank Robinson in the final finish department on March 26 between 2 and 3 p.m. With no witnesses pres- ent, Robinson approached him, complaining that the March 24 swarning was "bullshit" and that all the previ- ous warnings were also "bullshit." Warmoth replied that Robinson should wait a minute, that they should go back to the initial warning, and that they should do it in War- moth's office so that Robinson could understand them and the company rules. Robinson repeated that the warn- ings were "bullshit." Warmoth replied that Robinson was wrong, that the company rules were for everyone, and that the warnings were meant to cause Robinson to follow the rules. Warmoth concluded the conversation, stating that Robinson did not have to worry about the warning but rather should not repeat them. Inasmuch as Robinson did not deny either the occurrence of or the substance of this conversation, I credit Warmoth as to this conversation. C. Alleged 8 (a)(1) Violations Through March 26. 1979 The complaint alleges that several conversations, which occurred in February and March, are violative of Section 8(a)(l) of the Act. Although not specifically al- leged as violative of the Act, Frank Robinson asserted that, one day in early February at or about 7 a.m., he had a conversation with Mark Warmoth in the latter's office concerning what the Union might have to offer during negotiations. As they were discussing the matter of job security, Kyle Jordan walked into the office and said, "there was no such thing as job security because I will fire who I want to fire." Both Warmoth and Jordan denied the aforementioned statement attributed to Jordan. Inasmuch as I believe that Frank Robinson was not a truthful witness, I credit the denials of Warmoth and Jordan. coullil firc aliNhody hecause o1 the lctlionl, otr lay anybody off, hul ;ficr he elclctio hie would lIa off hif ihc plai an I "ould he nlumber onlle on il his lis. I do iloil credii Robhin on'o', 'rsion of his Marcht 24 conl- ver.ai,,iin, iih KIc Jordan Frank Robinson next testified that, at approximately 10 a.m. one day in mid-February while he was on the pro- duction line ill the final finish department and with em- ployee Bill l llat present, George Stretch approached him and said, "if I was doing any talking about Union activities, that if he vwas me, he would knock it off be- cause I wouldn't last long with the Company.'' ()n cross- examination, Robinson contradicted hinself, testifying that Chester Robinson and employee Bill While were present during this conversation. If so, however, al- though both testified. neither employee corroborated this conversation. Also, on cross-examination Robinson ad- mitlled that Stretch was not his supervisor and that he latter worked in a different department. Stretch denied the above conversation. Based upon Robinson's demea- nor anid the record, I credit Stretch's denial and reconm- mend that this allegation of the complaint be dismissed Chester Robinson testified that at approximately I p.m one day in late February, while he and Stretch were re- pairing an air conditioner, they discussed possible union benefits. According to Chester Robinson, Stretch stated, "If we stepped on too many people's toes that vwe would be fired regarding the union talk.... He says if Frank and I talked any union talk, we would be discharged." On cross-examination, Robinson admitted that this con- versation was not i his pretrial affidavit, asserting as an excuse that the Board agent did not ask about it. Also during cross-examination, Robinson gave another version of the conversation, testifying that Stretch said, "If we continued with the union affairs, we would be terminat- ed." George Stretch denied speaking to any employees about the Union and specifically denied the aforemen- tioned conversation. In view of its limited nature, and Chester Robinson's inconsistent testimony regarding the conversation, I credit Stretch's denial that said conversa- tion occurred, and recommend that this allegation of the complaint be dismissed. Next, Frank Robinson testified that, one morning about I month prior to the election, he was called into Kyle Jordan's office. Jordan informed Robinson that he was being given a written warning for arguing with an- other supervisor on the production line and causing pro- duction to stop. Robinson denied such an argument, and Jordan told him to then find out who did it "but he wanted me to know he was putting a reprimand in my jacket." At approximately 12:30 p.m., Robinson inter- rupted, stating that, if Jordan had investigated who was arguing, he would have discovered that it was Warmoth and another employee. Warmoth admitted it and, accord- ing to Robinson, Jordan then replied,"l just want you to know that if anybody slows down my production, they will be fired. He said I can't fire anybody right now be- cause of the Union. He said he would like to but he can't. He said after the election he will lay off half the plant and I would be number one on his list." On cross- examination, Robinson contradicted himself regarding this alleged threat, stating that the conversation occurred on March 24 that Jordan prefaced the alleged threat with the words "he told me he wasn't picking on me be- cause of my union beliefs." That he could not recall whether Mark Warmoth was present when the alleged Ms) Al IA .EISUR. INC threat was ladle, tlhat Jolinie Creail \-as present, and that lie could ot recall vx ether the alleged threat was uttered i tile irst or the second con\ersation ith Jordan that da`I:. While neither deniedi the occurrence of such a onersalion. both W'arnioth ad Jor(dan specifi- calls denied that Jordan l uttered the alleged threat. e- cause the occurrence of the conversation was not dellnied, I credit Robinson that Jordan did. indeed. threaten him with a ariing notice at the beginning of March: ho\- ever. based upon his oerall (ldemeanor and Rohinsonl's inconsistent testimony regarding the alleged threat. I credit the denials of Warmoth and Jordan as to the al- leged threats andi recommend that this allegation of the complaint be dismissed. I). R ohi on S Supcnsion The rerun election -was scheduled for March 30, and Frank Robinson \Nas choseni to act as anll election obserx- er for the Union. At approxiniatley 9:45 that morning, Johnnie Crean gave instriiclions to tle other union ob- server, JFranciso G ranados. and then spoke to Robinson. with employee William White approximately 10 feel away. According to Robinson, Crean "wanted me to punch out because my union buddies were there. and that he wanted me to go with them and stay with them until they were through with me. And then return to work." Employee White was called as a witness by counsel for the General Counsel and corroborated Rob- inson's version of this conversation. In contrast, Johnnie Crean, who testified that he gave identical instructions to Robinson and Granados, stated that he told Robinson, "I said the Union watited him to be an observer, and that he should go punch out until after he was done and then he should go in front of the place and report to the people around the polling place and do what they told him to do." tlowever, when asked by me whether he used the exact words "stay until you are done,"'' Crean admitted that he "may not have said that exactly in that term" aid that he actually said "he should go punch out until after the election." Inasmuch as Crean was contra- dictory as to the instructions given to Robinson, as his demeanor suggested to me that Crean was fully capable of using the language a.tributed to him by Robinson, and as employc White specifically corroborated Robinson as to xwhat Crean said, I credit Robinson's version of his colcrsation wxith Crean. After Crean spoke to Robinson and Granados. representatives of the union and Respond- ent held a preelection conference. According to Herbert Moss, during this meeting he engaged in a conversation with an unidentified union business agent regarding pay- menrit to election observers. During this conversatioli Robinson joined the two of them and heard Moss say to the business agent, "[W]hen the election was over, [he] expected the union observers to go back to work. Robinson admitted that he attended the preelectio con- ference bhut denied overhearing Moss say alnything about punching back i Based upoI his demieanor while testi- fying arid as I do liot believe Robinson \l as a truthful witness, I credit Moss as to this statmelent." ' Jhc1ยท 'I tJi i.kt\;1 \tls(' l I II I OI IM.1.1 II tl l 11h1 IIt 11" 1 11 .IVII A 1, '[h ll.\ N1-,- ' t'slIl 'I( II II I d h '1s il1 1l ( 1 A 1s, 1l ill} 1., 1 k I 11 I I I h , l II tlld 1 i, Jl h. There is no dispute that after the election. l hich the Ulion won(. during the counting of the ballots, eitlher Robinson nor Granado(s asked for or received permirsion to take a loirger than normal lunch break It is also not in dispute that, after it became apparent that the llilon would he x-ictorious, Creanl announced tI busill Ss agent Joe Montes that he wanted to start negotiations immedi- ately. Accordingly. Montes and Creani scheIdutled a lego- tialing session for April 5. After the counting of the hal- lots, which concluded at 11:30 am., Robinson anid G(ran- ados left for lunch with Montes and another union busi- ness agent. " Respondent's standard lunch hreak bhginls at II 30() a.i alnd ends at 12 noon. Robinson aid (irallados id Iot return to the plant util 12:30 p.m. Both Warimoth and Jordan, who svas aware that Robinson had left the plant with union officials, observed that Robinson had not re- turned from lunch at noontime and neither had kLnoo l- edge where either Robinson or Granados was A ap- proximately the tiile at which Grarnados ad Robinson returned to the plant, Jordan spoke to Johnnii Creali outside the former's office and told Crean thalt hotlh Roh- inson and Granados had not returned, that they had left the plant with unioni officials, that neither had permission to be late, that he felt talking to Robinson v,ould nrio longer do any good, and that he wanted to discharge Robinson. Crean responded that he would talk to his at- torney. Thereupon, Crean telephoned Moss and informed him of the situation. Moss instructed Crean to hax e Jordan interview Granados and Robinson separately to ascertain why they were late. Following these irisiruc- tions, Crean returned to Jordan arid instructed him to i- terview Granados and Robinson. Jordan and Warmoth, who observed Robinson arid Granados return to the plant spoke first to Gralnados at approximately I p.m. on the production line. Jordan asked Granados where he had been inasmuch as lie was late from returning from lunch. Granados replied that tihe had not realized he was gone that long, that he as apologetic about it, that they were celebraling their union victory, and that such would not happen again. Thereupon, Jordan and Warmoth spoke to Robinson; however, they contradicted each other as to thie cilcum- stances of this conversation. Warmoth testified that lie anrid Jordan spoke to Robinson at tile metal station anid that he (Warmoth) was only present for part of the conII- versation; while Jordan testified that Warmoth wa;s pres- ent during the entire conversation andl that the collvlersa- tion occurred in Jordan's office. As to the conxersation, I'eenl his tiITnmoili all d tile IeslII11i( 11) Of other .. ItiCss(.S holUc', r. hbslllg ni) rcs.tllilllons upoil ll Lal IIIltl III' * l- e Il CIctrd t i a (hl-ic .ind t', hlet 11nl llnlllllt llt l t f llt I the ; rtl lcriilliOllc It 1 ititslttCiIC . I lct, Ct1it1iCtJ S hclic tIhail s i. t .i. ai Irlllil i IItCe aIinte p tlci l hilD I cl tllI '" Al 11 3() i r il aitr Ilh hat1[lol C( iiit. Rohllloli, (irlillltdo,. M1.t11C\ . cTIdll i'tLIn R hlll l ' I1f11 lC llill Ih C lihOt A IIII l is A JIl Iil . 1 h i lidLiillS I ltlRlllilg i.0Ill\( l ILtgtll llelt ll VlIl .. lllt'.lIl R.llltl I hdt-chc I}P. 5 t 'llpt' o 1 Jlls" -1111 ,ilhll R.-1 m hi C ltloi\ l1 1l;.11 h[ h"II.(Ig 11 Ilii" ,.g.l~l. ' AL 1"1111 ,., 1, 1 s,1 hl \1 1 \\.1 1"''""11 lht' I N';IFII i2. Jl-lm ( ilI.,, , jl . 1 lJIt' 11 , lls (I1 tI'l 1 .,lw 0r.iLI Ih' 1LS- t" l .l'tIC l Rii.h (l.lls llll f.L' , "I I ldt1.1. , t .ll l l1\ 1111 ' tIf' I1 (Ir Lil l lo *It i1,,.1 ' ll)Ll 700 I)ECISIONS (): NA TIONAL LABOR RELATIONS BOARD according to Jrdan, he told Robinson that the latter was once again in violation of shop rules for not checking with his supervisor prior to leaving the plant, that Re- spondent could not tolerate such action, that such insub- ordination would lead to termination, and that he wanted to know why Robinson had gone and what prompted him to leave. Robinson replied that it was no big deal, that they were just out celebrating their victory, that he felt Respondent was a sore loser, and that such was the reason why they were picking on him. Jordan replied that Respondent was not picking on Robinson, that per- sonally the results of the election meant nothing to him, that the Union was not a determining factor, and that Robinson was still in violation of the ship rules. Accord- ing to Jordan, Robinson replied with profanity. War- moth's remembrance of this conversation was brief, testi- fying that he heard Jordan ask Robinson where the latter had been and that the latter replied he was with the union people. Warmoth also recalled Robinson saying that this was no big deal. At the conclusion of his conversation with Robinson, Jordan prepared another warning notice for Robinson. Next, Jordan went to Crean's office and reported the substance of his conversations with Granados and Robin- son. As to Robinson, Jordan testified that he told Crean that Robinson continued to express an insubordinate atti- tude toward the company rules and that therefore he be- lieved that Robinson should be fired. On the other hand, Jordan felt that Granados was a "super" employee and that a warning notice should suffice for him. " After speaking to Jordan, Crean again telephoned Moss. They discussed what had occurred that afternoon and conclud- ed that, although they could not permit the behavior of Robinson and Granados to go unpunished, it would be best to start negotiations on the best foot. Accordingly, they concluded that Granados would receive a warning notice and that Robinson would be suspended for 2 weeks. When asked why, based upon his prior miscon- duct, Robinson was not terminated, Crean replied, "We were gunshy of hearings" resulting from the expense in- curred from the prior postelection proceedings. After speaking to Attorney Moss, Crean spoke to Jordan and relayed the instructions regarding Robinson to the latter. Thereupon, Jordan added the discipline onto the warning notice, which he had previously pre- pared for Robinson. At approximately 3 p.m., Jordan had Warmoth bring Robinson into Jordan's office. Jordan told Robinson that the latter was again in viola- tion of shop rules for failing to check with his supervisor prior to leaving the plant, that this was the fourth time that such had occurred, that Robinson was showing an "obvious" disregard for supervisors or supervision in the shop, that Robinson being an observer in the election made no difference, that he was still employed by Re- spondent and had to follow the rules and regulations, that Robinson's attitude was that he just did not care about company rules, and that, since he had such an ob- Accrrdilmg tlo Crean. Jordan reported to himt that both (iralados arind Robinslon had been drinking during lunch Jordan did iot corrobo- rate this spect of the conversation h ever, he did testify that hi. de- tected the ,dror f allcohitl on Robins on's breath I credit Jordan that uch va, not reported to rcaln hb Jordan vious disregard for company rules and regulations, he (Robinson) was being placed on suspension for 2 weeks. According to Jordan, Robinson replied that it did not make any difference because he was being paid by the Union and that he would get all the money back anyway. 2 Jordan identified Respondent's Exhibit 7 as the warn- ing notice, which he handed to Robinson on March 30. The body of the document reads as follows: Violation of shop rules: Leaving the company premises without permission from your supervisor. I personally talked to you on Friday, March 23, 1979, for this same violation. You agreed to notify your supervisor the next time. Today, March 30, 1979, you clocked out as re- quested by Johnny Crean to be an observer in the election. After the election you left the company premises without advising your supervisor. You re- turned at 12:31. Thirty-one minutes after work began. At the bottom of the document the following words appear, "Due to your obvious disregard to company rules, you are placed on suspension for 2 weeks. Suspen- sion to start April 2, 1979 and ending April 16, 1979." Jordan testified that the body of this warning notice was written after his initial conversation with Robinson on March 30 and that the last paragraph was added after Crean instructed Jordan as to the punishment for Robin- son. When asked to identify this same document, Robin- son asserted that it was not the same March 30 warning notice which was given to him and that the warning notice, which he saw, stated only "in violation of shop rules for leaving the Company without permission for 30 minutes. Then it said that I was suspended from April 2 to April 16." 1 credit Jordan that Respondent's Exhibit 7 was, in fact, the warning notice given to Robinson on March 30. Both Robinson and Jordan testified that Mark War- moth left the plant with Robinson after the aforemen- tioned conversation with Jordan. According to Robin- son, while they were walking, he accused Warmoth of being a poor loser because the Union won. Warmoth re- 12 Frank Robinson testified that, at I p m while he \, as in the metal department, Warmoth and Jordan walked iver to him. and Jordan asked wshere the hell had he been since 9:31 am. Robinsoln replied that Crean told him It punch out and go with the uioll guys and, when he was through, return to work, that he ent to lunch ith the union officials and discussed the upcoming contract negiliatlrs, and hat he i(il5 re- turned 30 minutes late. According to Robinson. Jordan responded that he would find out how much power the nion had because he wanted to kno what had happened during the 30 minutes Rbinson was girne without permission. Robinson next testified that, at 3.30 p nl. Warmotlh came tver to him and accolmpanied hinm It Jrdan's t)ffice Jordan in- flrnmed Robinson that the latter s"as being uspcnded fr 2 week fr lea ig for 30 minutes without permission. that he had arned Robinson prev iusly about this, and that Robinsrin had nl authorlzatio n or permis- s1i1 to leave for 31) minutes Robinson then replied with a fabrication, asserting that he had permission from Jhnilie Crean According Rob- inslon. Jordan replied that he did nol care and that the uspension wuld stand. )espile the iconsistlencies between Jrdanl and Warmloth a ti the first of the two conversatiolns i sicw f the record a a whole I credit Warmoth and Jordan as to these conversaliin, and specificall, discredit the testinilrony f Robinson AI.FA I.EISURE, INC' 7O1 plied, "Yes. ;,nd I am taking it personal because you have worked for me for a long time and I had faith in you. That he couldn't understand wh I believed the way that the Ulnion believed, and that he would like to see how I work out after I returned to work with the Union. Then he told me to get off the property and I left." While Warmoth denied neither the occurrence nor the substance of this conversation. I believe that Robin- son fabricated this conversation. On cross-examination, after being asked by Respondent's Attorney Moss wheth- er this conversation was included in his pretrial affidavit and after having carefully examined his pretrial state- ment, Robinson testified that the conversation was not included in his affidavit. When asked whether he had mentioned the incident to the National Labor Relations Board agent, Robinson replied that, on reading over the affidavit after its completion, he realized the Warmoth conversation was not included. Therefore, Robinson called the Board agent the next day and "told him that I forgot about the conversation that I had with Mark War- moth and it would be important for me to tell him." Ac- cording to Robinson, the Board agent replied that he would get together with Robinson later. However, con- trary to Robinson's testimony at the hearing, analysis of his pretrial affidavit, dated April 3, reveals that the afore- mentioned Warmoth conversation does, in fact, appear therein. Accordingly, Robinson obviously fabricated his explanation as to why this conversation, which does appear in his pretrial affidavit, did not appear in said affi- davit. Based upon this fabrication, notwithstanding that Warmoth does not deny it, I do not credit Robinson as to the substance of this conversation. ' Respondent's Attorney Moss testified that at approxi- mately 4:45 p.m. on March 30 he received a telephone call from Joe Montes. Montes asked Moss if the latter knew what had happened to Robinson that afternoon. Moss replied, "[Y]es, I saved his job." Moss continued, stating that Respondent was angry at Robinson because this was not the first time that Robinson was absent without authorization, that such had occurred on two or three prior instances, and that, although Granados had admitted wrong, Robinson "indicated he did not think there was anything wrong." Moss then told Montes that Robinson had been suspended rather than terminated be- cause Robinson had been a union observer, the parties were entering into a new bargaining relationship, and, yet, Respondent believed that Robinson's absence with- out authorization and his insubordinate tone warranted some sort of discipline. Moss concluded the conversation by asking Montes to tell Robinson that he (Moss) had saved Robinson's job and that, the next time he caused trouble, Moss "might not step in and save his job." Even a' Respondent offered the testimony of employee Harry Smith, who testified that. at approximately 3:15 or 320 p.m on March 30. Robinson approached him, saying that he had just received a reprimand for coming back late from lunch, that he thought the reprimand as "bullshit," and that they could not fire him or give him any reprimand for any other reason because he was in the union negotiations I do not credit Smith as to this conversation. His testimony regarding the timing of this consersa- tion is at variance with the testimony of all the other witnesses regarding the timing of event,. Moreover. Jordan corroborated Robhin,on that. im- mediately after their 3:30 pm conversation. Warmoh accompanied Rob- inson out of the plant though present at Ihe hearing. Montes was not called as a xitiless to either corrobhorate or tdenri teli conersation Accordingl 5 . I credit Moss oil this cotersation E. Robitno v I 'rmi'natliol Based upon their conersatiol o the mnorning of March 30, Montes antid Crea schcduled a negotialting session for April 5 at Respondent's office. The meeting began at 9:30 a.m. with Crcan arid Moss present for Re- spondent and Montes. another business agent, Chester Robinson. Frank Robinson, and Granados present for the Union Prior to the meein., Respondent sent contract proposals to the Unionl and at the start of the session. Monies handed Moss the Union's initial coltract propos- als. After Moss read through the UlniotI's proposals, Montes refused to negotiate on any specific items of the contract ostensibly because his attorney vwas not present. Moss reminded Montes that the latter had promised to negotiate on that date: however, Montes replied that lie realized the Union had made a firm promise to negotiate but he could not do so without his attorney being pres- ent. At that point the meeting degenerated into a shout- ing match between Crean and Montes. w ith Crean stat- ing that he had to pay his attorney for being present arind demanding that the Union reimburse him for his attor- ney's fees. As the meeting was breaking up. Moss turned to Frank Robinson and stated, "I have been informed that you have said to some employees that you are going to 'kick their ass' if they didn't support the Union" and "I want that kind of nonsense to stop." What was said next is in dispute. According to Moss, Robinson replied "that was a bunch of bullshit which [Moss] couldn't prove. He said you go prove it, you can't prove it." Moss again warned Robinson to stop threatening employees. aind Robinson kept repeating "you can't prove it, ou can't prove it." Jonnnie Crean testified that Moss said to Frank Robinson that he heard that Robinson had threat- ened to "kick the ass" of some employees and that he wanted Robinson to stop or Moss would fire him him- self. According to Crean, Frank Robinson responded that Moss could not prove it. Frank Robinson testified that Moss pointed a finger at him and said, "I would like to discuss this man right here. He has been threatening people in the Company We will not put up with that and I will fire him for that." According to Robinson, he replied that he did not threaten anybody in the Company and that Moss would have to prove Robinson did because he had not. O)n direct examination, Chester Robinson testified that his brother responded, to Moss, that he was not around to threaten anyone. However, on cross-examination, Ches- ter Robinson directly contradicted his brother, testifying that Frank Robinson did not say that he had not threat- ened anyone. Based upon this contradiction, the demea- nor of the witnesses, and the record as a whole, I credit Moss and Crean that Frank Robinson never denied AIA LEISR. INC Till 702 I)LCtISI()NS ()0 NAIIO()NA. I ABO()R R.A II()NS tI()ARI) having threatened employees but rather only responded thalt Mloss could not prove it. 4 Hlhe "bargaining session" lasted lor only approximately 15 to 20) tlillutes and concluded after the confrontation hbet ween Moss and Frank Robinson. Immediately thereaf- ter. Attorney Moss, who was authorized to make such decisions on behalf of Respondent. decided to terminate employee Frank Robinson. Moss credibly testified that the reason for his decision to terminate Robinson "was the way he spoke to me and in the light of what previ- ously happened before, especially in light of my specific request to the union business agent, to talk to Robinson about the way he spoke to company representatives." According to Moss, the factors that went into this deci- sion were his belief that he was entitled to a more cour- teous response from Robinson than he received that morning, his prior warning to Montes that Robinson had a big mouth and that he (Robinson) should "watch what the heck he said," and his feeling that Robinson just did not care about not acting insubordinately. That afternoon, Robinson returned to the plant with his brother and Granados to pick up a paycheck. Ac- cording to Robinson, Jordan met them in the reception area and "stated that I was being terminated for disre- spect to Johnnie Crean's lawyer, and to Johnnie Crean at the negotiating meetings. That he cannot put up with anybody that won't go along with the company rules, and I was in violation of this because I was active in the Union, and that he just couldn't put up with it. So I'm being terminated at this time for disrespect." Jordan then handed Robinson a termination paper and Robinson asked for a copy. At that point Johnnie Crean stepped into the room and said, "I don't have to give you shit according to the law. Adios mother fucker." Robinson then left the plant. On cross-examination, upon being confronted with his pretrial affidavit in which the words "I was in violation of this because I was active in the Union" do not appear, Robinson began hedging, eventu- ally averring that the word "union" was only hinted at by Jordan and, then, in another conversation 2 months earlier. Chester Robinson, during his testimony regarding this incident, corroborated his brother that Crean yelled at the conclusion of the meeting "adios mother fucker" but specifically contraicted his brother, testifying that Jordan gave as the reason for Frank Robinson's termina- tion his "disrespect to Johnnie Crean and the lawyer and the Company." Kyle Jordan specifically denied saying to Frank Robinson that Robinson had been fired because he was active for the Union. Based upon the record, I be- lieve that Frank Robinson fabricated his version of the conversation with Jordan: accordingly, I credit Jordan's denial that the Union was ever mentioned during this April 5 conversation. As to the allegation that Crean yelled "adios mother fucker" to Frank Robinson, Crean t 4 As to the basis for Mos' warning to Robinson. Moss and Crean ie'- lifted that after the March 30 elecion. while investig ating posibl e objec- ilioahle conduct, empltolce Wiie Lew.is informed them that Robinson "had threatened to 'kick as' of anyone who did not support he Union" While mindful of the fact that Crean and Moss contradicted each other regarding whether Moss adised Lew is that the latter vas under no ,bti- gallotn to ans,; er their questions, i n s tis of the record is ; a hol e, I rcdit Mss and Crean as I t his coles ersatlnl Morco'cr , neIher the General Coutsel nor the Union offered ani: rebuttal to this testimony specifically denied making such a statement. While War- molh. JordanI and employee Melba Spaugy all corrobo- rate Crean in this regard, based upon his deticanor. which suggested to me thiat Crean was quite capable of such language, I do not credit Crean's denial and find that he, indeed, did yell out to Rohinson at the conclu- sion of the termination conversation "adios, mother fucker." F. The Chester Robinson Letter Al some point during the spring, Chester Robinson became incarcerated at the Ventura School, an institution of the California Youth Authority, for armed robbery. According to Frank Robinson. the status of his brother was brought up at the third negotiating session between the Respondent and the Union, which was held in Santa Ana, California. Present at the meeting for Respondent were Moss and Crean; present for the Union were Rob- inson, Montes, and another business agent. During a recess in the meeting, Crean asked how Chester Robin- son was doing. Frank Robinson replied that his brother was fine but that his brother was going before that parole board and needed a letter stating he still had a job when he got out of jail, to insure a parole. According to Robinson, at that point Crean and Moss caucused. When they returned, Crean said that, if Robinson dropped the pending Board charges, he would give Chester Robinson such a letter and get him out of jail. Frank Robinson re- plied that he could not accept such an offer. Crean re- sponded that Robinson must not care about his brother, and Robinson replied that he did not want to drop the charges to let his brother out of jail. Attorney Moss testi- fied to a slightly different version of this conversation. According to Moss, during a union caucus, Crean asked Robinson how his brother was doing in jail. Robinson re- plied that Chester needed a letter or a job to get proba- tion. Moss replied that if Frank were serious, as part of the negotiations, "one possibility would be that we might help out your brother and you in turn might drop these charges." Montes and the union attorney returned from their causus, and Moss told the attorney of this offer. After a later company caucus, the attorney asked Moss if the latter were serious. Moss replied, "It's open to nego- tiations and discussion." According to Moss, there was no further discussion of this offer at that negotiating ses- sion. G. Discussion and Findings 1. The 8(a)(3) allegations The record establishes that Frank Robinson was an active supporter of the Union and that, at least since the beginning of February, Respondent was aware that Rob- inson supported the Union. The record further estab- lishes that Robinson acted as an observer for the Union at the March 30 Board election. Thereafter, on the after- noon of the election, Robinson was suspended for a period of 2 weeks, and, on April 5, he was terminated. Counsel for the General Counsel contends that the com- bination of Respondent's knowledge of Robinson's union sympathies, animus resulting from the alleged independ- AI.FA LEISURE, INC 7()03 ent 8(a)(1) violations, the shifting reasons given for each of the aforementioned arnings. and the March 3() sus- pension inescapably lead to the conclusion that Respond- ent's real motivation in discharging Frank Robinson vas his union activism. On the other hand, Respondent urges that the events of April 5 precipitated Moss' decision to terminate Robinson, that the decision had its genesis in Robinson's prior insubordinate attitude toward Respond- ent's management and work rules, and that Robinson's protected activities were not a consideration in Moss' de- cision. The record establishes that Respondent's Attorney Moss was the individual who made the decision to sus- pend and then terminate Robinson. The record further establishes that, based upon Robinson's participation as an observer at the March 30 election and as a representa- tive at the April 5 "negotiation" session, Moss was cer- tainly aware that Robinson was a union supporter. How- ever, there is no credible evidence in the record to estab- lish that Moss harbored any union animus towards Rob- inson in reaching his decisions to first suspend and then to terminate him. Rather, I credit Moss' testimony that his decision to suspend Robinson was based upon the lat- ter's "continued conduct of being absent without authori- zation, and his insubordination or insubordinate tone." Further, I credit Moss' testimony that his decision to ter- minate Robinson was likewise based upon Robinson's in- subordination--"the way he spoke to me and in light of my specific request to the union business agent, to talk to Robinson about the way he spoke to company repre- sentatives." However, while it is clear that Attorney Moss, who was vested with authority to effectuate the suspension and discharge of Robinson, personally was not unlawful- ly motivated in reaching the aforementioned decisions, it is also clear that a telephone call from Respondent's president, Crean, on March 30 precipitated Moss' deci- sions. Crean telephoned Moss and informed him that Robinson had come back late from lunch and had spoken rather insubordinately to Jordan, that this was not the first time that he had been absent without authorization, that there were at least two or three prior instances where Robinson had been late or absent without notifica- tion, and that Robinson had been issued warning notices on these occasions. After Crean reported that as a result of the aforementioned Jordan wanted to terminate Rob- inson, Moss concluded that the proper form of discipline would be a 2-week suspension. It is axiomatic that, if a supervisor, on whose report action is taken, was discri- minatorily motivated in making such a report, there can be no question but that the report must be considered the cause of the action and that any resulting action must be regarded as itself discriminatory. Bechtel Corporation, 195 NLRB 1013, 1020 (1972); Allegheny Pepsi-Cola Bot- tling Company v. N.L.R.B., 312 F.2d 529, 531 (3d Cir. 1962). Herein, there is no credited evidence that Re- spondent generally, or Jordan or Crean specifically, har- bored the type of hostility toward union activities that would have motivated it to discharge Robinson because he was active in support of the Union. As is set forth above, the allegations in the complaint relating the inde- pendent violations by Jordan of Section 8(a)(l) have not been established by a preponderance of the credible evi- dence. While I have found that Crean did tell Frank Robinson on the morning of the election "to punch out because [his] union buddies were there" and that Crean did tell Robinson after the latter had received his dis- charge notice from Jordan, "adios mother fucker," these statements appear to be manifestations of personal dis- taste by Crean and, I believe, should not be construed as showing a motive for Respondent to discharge Robinson because of his protected activities. What remains, then, is consideration of Respondent's defense that Robinson had been late or absent without notification or permission from supervisors on at least five occasions, that Robinson had been insubordinate to supervisors when confronted with his violation of shop rules, and that Robinson had received at least five warn- ing notices concerning the aforementioned incidents. Re- garding said warning notices, counsel for the General Counsel asserts in her brief that "each of the January 25, two February 12 and March 23 warnings was fabricated by Respondent in order to support the March 30 suspen- sion of Frank Robinson." Both the Board and the courts have held that, "If the stated motive for a discharge is found to be false, it can be inferred that the motive is an unlawful one which the Respondent desires to conceal, at least where the surrounding facts tend to reinforce that inference." First ational Bank of Pueblo, 240 NLRB 184, 185 (1979); Shattuck Denn Mining Corpora- tion (Iron King Branch) v. V.L.R.B., 362 F.2d 466, 470 (9th Cir. 1966). Upon careful analysis of Respondent's defense, I believe that the record clearly establishes that Frank Robinson did, in fact, engage in the misconduct attributed to him by Respondent. Initially, contrary to his assertion, I believe that at all times material herein, Robinson was aware of Respondent's shop rules, includ- ing the requirements that employees obtain permission from supervisors before leaving the plant during work- time and that employees report their absences to Kyle Jordan. As to Robinson's employment record, I credit the testimony of Jordan that, on January 24, Robinson was absent from work without reporting his absence that day to Jordan. Next I credit the testimony of Jeff Fran- cis that he left Robinson in charge of the department on the afternoon of January 25 with explicit instructions to remain at work until a particular project was concluded and that Robinson disregarded said instructions and left the plant at the normal quitting time because he did not feel like working overtime. As to the events of February 12, 1 credit the testimony of Mark Warmoth that, with- out giving permission for Robinson to leave the plant, he instructed Robinson to seek such permission from his su- pervisor, Jeff Francis. I also credit the testimony of Francis that Robinson informed him that Warmoth had given Robinson permission to leave the plant to accom- pany his brother to court and that Francis, in turn, gave no such explicit permission for Robinson to leave. As to March 23, the day of Chester Robinson's motorcycle ac- cident, I specifically discredit the versions of the events offered by Chester and Frank Robinson and credit the testimony of Jeff Francis that the car bearing Chester and Frank Robinson, their sister and Chester Robinson's ALFA LEISR. INC. 7O3 704 DECISIONS OF NA Il()NA. IABH()R RElAtIONS BO()ARD motorcycle dr'wve into the parking lot, that Frank Robin- son jumped out of the car and shouted that they were leaving for the hospital, and that Robinson left without ever obtaining such permission. Furthermore, as to the events of March 30, there is no real dispute that Robin- son and Granados were away from the plant aproximate- ly one-half hour beyond the authorized lunch hour. There is no record evidence that either Granados or Robinson was explicitly authorized or given permission to remain away from the plant beyond the lunchbreak, and I do not believe that Robinson could reasonably have believed that he had such permission. In this regard, I credit the testimony of Moss that, with Robin- son standing nearby and listening, he informed a union business agent hat, "when the election was over, I ex- pected the union observers to go back to work." Also in this regard, Frank Robinson testified that, when speaking to Jordan that afternoon, "I stated that I did have per- mission from Johnnie Crean, the owner of the building, to leave for 30 minutes." This assertion, I believe, was an obvious falsehood. Finally, I credit Warmoth, concern- ing his conversation with Robinson on March 26, and Jordan, concerning his conversations with Robinson on March 30, that the latter used curse words and was gen- erally insubordinate both to them and about Respond- ent's plant rules. As to counsel for the General Counsel's assertion that the five alleged warning notices herein were fabricated by Respondent, while I also question the validity of Re- spondent's Exhibit 3, the alleged January 25 warning notice,i and Respondent's Exhibit 5, the alleged second of two February 12 warning notices, ' I nevertheless be- lieve that these do not detract from the validity of Re- spondent's overall defense herein. Initially, crediting, to a degree, the testimony of Kyle Jordan, I find that a warn- ing notice, General Counsel's Exhibit 7, was given to t I have serious doubts regarding the validity of the alleged January 25 warning notice and, therefore, with the credibility of Jordan regarding .aid warning notice. Thus, the record establishes that. on January 24, Robinson was ahbsent from work. On January 25, Robinson returned o work and, in disregard of explicit instructions from Francis left work early without completing an assignment Francis discovered Robinson's conduct on January 26 and thereupon reported such to Warmoth and Jordan. The alleged warning notice ostensibly includes both incidents. and Jordan asserted that he discussed the contents of the warning notice with Robinson. However. twice during his testimony Jordan emphatical- ly stated. "that the warning notice was drafted on January 25 In fact he stated. "1 wrote it on the 25th-the day I looked at his timecard. When his timecard was not there and he did not call in, that's the time I write [sic] it Moreover Jordan admitted that he had his discussion with Robinl- son "when he came back to work." Accordingly. taking into account Jordan's own version of the timing of the alledged warning notice, unless he possessed extraordinary prescience. the alleged warning notice could not have included any reference to Robinson having left the plant early and without permission; for the latter incident occurred on January 25. and neither Francis nor Warmoth nor Jordan himself became aware of the facts of said incident until January 26-the next day. Accordingly, I place no reliance on the validity of this document. '6 As with the alleged January 25 warning notice. I have serious reser- vations regarding the validity (of Resp Exh 5 the first alleged warning notice given to Robinson on February 12, and, therefore, do not credit Jordan's testimony regarding said document. Upon being confronted with the second alleged warning notice. G.C. Exh. 7, dated February 12, Jor- dan's testimony became ague, confusing, and contradictory. Moreover. his ultimate explanation --and apparent justification-for the existence of two warning notices hearing this date appears to me to be utterly incredi- ble Thus I place no reliance on this exhibit. Robinson based upon the events of February 12. Jordan testified that he had prior knowledge of the court date. and I believe that the less extortionate wording of the aforementioned exhibit closely fits the facts-and serious- ness-of that incident.'7 Also, I credit Jordan's testimo- ny regarding the events and circumstances underlying Respondent's Exhibit 6, the seconid warning notice given to Robinson on March 24 over the events of March 23. Finally, despite Robinson's assertion that Resondent's Exhibit 7 was not the warning notice which was shown to him on March 30, 1 again credit the testimony of Kyle Jordan, identifying that exhibit as the warning notice of March 30. Besides these warning notices, which I have specifically found to be valid, the record reveals that, in making his decision to suspend Robinson, Attorney Moss was not concerned with the number of warning notices but rather with the events underlying the warning notices and the fact that Robinson had received warning notices. Accordingly, based upon the record and the credited tes- timony, the conclusion is inescapable that Kyle Jordan was motivated by Robinson's work record and attitude in recommending to Johnnie Crean on March 30 that Robinson be terminated, that Crean, in turn, was likewise motivated in reporting Jordan's recommendation to At- torney Moss, and that Attorney Moss was solely moti- vated by Robinson's performance record in recommend- ing that he be suspended for a 2-week period. In considering Attorney Moss' decision on April 5 to terminate Robinson, I have credited his testimony that Robinson's insubordinate attitude toward him that morn- ing, based upon Moss' telephone conversation with Montes on March 30, was his motivation for the dis- charge. I do not believe, by a preponderance of the evi- dence, that counsel for the General counsel has estab- lished that union considerations influenced Moss' deci- sion. Thus, it is gainsaid that management can discharge an individual for good cause, bad cause, or no cause at all and that management has complete freedom, and just cannot discharge when the real motivating purpose is to do what Section 8(a)(3) of the Act forbids. Great Plains Beef Company, 241 NLRB 948 (1979); Red Kap, a Divi- sion of Blue Bell, Inc., 238 NLRB 555 (1978). Further, while counsel for the General Counsel questioned Attor- ney Moss at great length as to the types of acts which the latter would have found insubordinate, such is not the real issue herein. "While the discipline may seem ex- treme, it does not follow that the ascribed reason for the discharges is pretextual." J. Ray McDermott & Co., Inc., 233 NLRB 946, 952 (1977). Clearly, if no lawful motive is involved, the National Labor Relations Board cannot substitute its judgment for that of an employer as to the grounds for punishment and, indeed, for the type of pun- ishment. Finally, counsel for the General Counsel, citing Ilawai- ian Hauling Service, Ltd., 219 NLRB 765 (1975), argues that Robinson was insulated on April 5 from discipline for any statements he may have made to management 17 Buttressig my belief that onle sricln sn ailnlg rather than three, was given to Robinson prior tto March 24 i Jordan's admission to Rohbinl- son in March 24 that the sritten warting if that date was "lthe scoorl warning in the file. "(Enphasis supplied ALFA LEISUREF. INC. 705 representatives, which normally would have constituted insubordination if made in other contexts, inasmuch as he was engaging in collective bargaining with Respondent. However, this argument presupposes that the context of the ascribed statement was bargaining. Herein, it cannot be seriously contended that any bargaining occurred during the meeting of April 5. Rather. Union President Montes specifically refused to bargain because his attor- ney was not present. Further, the testimony of the par- ticipants reveals that most of the meeting was taken up by an argument between Montes and Crean over the payment of attorney's fees. Also, the confrontation be- tween Moss and Robinson occurred as the meeting was breaking up and at a point where no bargaining-if, indeed, it can be so labeled-was taking place, and, in any event, the subject matter was entirely unrelated to the purpose of the meeting. Cf. The Union Fork and Hoe Company, 241 NLRB 907 (1979). Based upon the above, and the record as a whole, I do not believe that counsel for the General Counsel has es- tablished by a preponderance of the evidence that Re- spondent issued warning notices to Robinson, suspended Robinson, and ultimately terminated Robinson because he engaged in union or other protected concerted activi- ties. Court Square Press, Inc., 235 NLRB 106 (1978); T F E. Industries a Division of Dayco, Inc., 231 NLRB 612, 620(1977); Spauling, Division of Questor Corporation, 225 NLRB 946, 949(1976). 2. The Chester Robinson offer Frank Robinson and Attorney Moss are in essential agreement that at a negotiating session in Santa Ana, California, on July 12 after Johnnie Crean asked Robin- son how his brother Chester was doing, Robinson re- plied that his brother needed a letter, which guaranteed him a job upon being released from jail, in order to be eligible for parole. Thereupon, Respondent offered to write such a letter, guaranteeing Chester Robinson a job, in exchange for Frank Robinson's withdrawal of the in- stant charges. According to Robinson, he turned down Crean's offer; while, according to Moss, the Union's at- torney rejected that proposal. Counsel for the General Counsel argues that Crean's statement constituted an un- lawful promise of benefits to Robinson if he would with- draw the instant charge. In contrast, Respondent argues that Crean's offer was simply an attempt to settle the in- stant case. In addition, Respondent contends that any at- tempt to settle the instant dispute cannot constitute a matter upon which a violation may be based. While Respondent characterizes its offer as an attempt at settlement, it is significant to note that neither would Robinson have personally benefited it, nor would he have derived anything comparable to the traditional Board remedies. Furthermore. even crediting Attorney Moss' version of the facts, neither he nor Crean ever ex- plained to' Robinson that he was under no obligation to withdraw the charges. Medline Industries, Inc., 233 NLRB 627 (1977). In these circumstances, while on its face a quid pro quo, I do not believe that Respondent's offer should simply be characterized as an attempt at set- tlement. Rather, given the equities of the case, I believe that Respondent was well aware, based upon Frank Rob- inson s introductory comment, that the offer of a letter for his brother would be something that Robinson would value clearly, a promise of a benefit. Accordingly, con- ditioning the sending of such a letter on Robinson's with- drawal of the charge limited Robinson's right of "unfet- tered access to the Board's processes." Berwick Forge & Fabricating Division. Whittaker Corporation, 237 NLRB 337 (1978). I, thus, conclude that Respondent's state- ments constitute a violation of Section 8(a)(1) of the Act. Berwick Forge & Fabricating Division. Whittaker Corpora- tion. supra, Medline Industries. Inc.. supra, Firestone Steel Products Company, a Division of Firestone Tire and Rubber Company, 228 NLRB 1040 (1977). CONC USIONS 01 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 mean- ing of Section 2(5) of the Act. 3. By promising benefits to employees if they with- draw charges pending before the National Labor Rela- tions Board, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The unfair labor practice set forth above affects commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not violate Section 8(a)(l) and (3) of the Act by issuing warning notices to, suspending, and terminating employee Frank Robinson. 6. Respondent did not violate Section 8(a)(l) of the Act by threatening an employee with discharge if he spoke favorably about the Union, or by threatening an employee that half the employees would be laid off after an election and said employees would be first to be laid off. THi Rt:Ni.1) Since I have found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend to the Board that Respondent be ordered to cease and desist from engag- ing in those unfair labor practices. I shall also recom- mend to the Board that Respondent take certain affirma- tive action in order to effectuate the policies of the Act. In accordance with the Board's decision in Hickmott Foods. Inc., 242 NLRB 1357 (1979), 1 shall recommend to the Board that a narrow remedial order be issued. [Recommended Order omitted from publication.] ALFCA LEISR. INC. 05 Copy with citationCopy as parenthetical citation
