Landmark Beef Processors, Inc.

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