Millcraft Furniture Co., Inc.

MILLCRAFl FURNITURE Co. Miilcraft Furniture. Company, Inc. and Saul P. Zelayal and ,Juan Buendia. Cases 21-CA- 23289 and 21-CA-23290 5 January 1987 DECISION AND ORDER BY CHAIRMAN DorsoN AND MEMBERS BABSON AND '&,MPHENS On 15 March 1985 Administrative Law Judge Jerrold H. Shapiro issued the attached decision. The General Counsel filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judges rulings, findings, and conclusions only to the extent consistent with this Decision and Order. Contrary to the administrative law judge, for the reasons set forth below, we find that the Respond- ent unlawfully discharged Charging Party Saul Zelaya in violation of Section 8(a)(1) of the Act for engaging in concerted activity protected by Sec- tion 7 of the Act.2 A. Facts On 15 June 1984 during a. workbreak one of Ze- laya's fellow employees complained to Zelaya and some other employees about the manner in which Plant Manager Morales had reprimanded that em- 11 Charging Party Zelaya s name is misspelled throughout the judge's decision. 9 We affirm the judge's conclusion that the Respondent did not unlaw- fully suspend and, subsequently discharge Charging Party Juan Buendia. In dismissing this allegation, the judge found, inter alma, that there was no evidence of union animus on the part of the Respondent. In so finding, the judge relied in part on an absence or any other unfair labor practices committed by the Respondent Inasmuch as we find below that the Re- spondent did commit an unfair labor practice by discharging Charging Party Zelaya because of his protected concerted activity, we do not rely on this aspect of the judge's rationale. Nevertheless, we agree with his ultimate conclusion that the Respondent did not commit an unfair labor practice by suspending and subsequently discharging Buendia. In this regard we note the absence of any other evidence to support a finding or even an inference of union animus. Moreover, as seen below, the Re- spondent unlawfully discharged Zelaya solely because of his refusal to discuss a group grievance with the plant manager. While clearly protect- ed'activity, Zelaya s conduct was not shown to be related in any way to the Union's organizational campaign or employee activity in support of the Union. Under these circumstances involving an isolated act unrelated to the union activity, and an absence of any other evidence from which to infer union animus, we affirm the judge's conclusion that Buendia was not unlawfully suspended or discharged. Member Stephens does not agree with the judge that the General Counsel failed to make out a prima facie case that Buendia's union activi- ties were a motivating factor in his discharge; but he conclude, on the basis of the judge's factual findings, that the Respondent satisfied its burden of proving that Buendia would have been discharged in any event. Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1981). 593 ployee. A discussion ensued among these employ- ees about the way Morales conducted himself to- wards employees. The employees in the discussion commented that Morales had committed "many in- justices" during his approximately 6 weeks as plant manager. Zelaya suggested that the employees talk to the Respondent's president, Miller, about Plant Manager Morales' perceived mistreatment of em- ployees. The other employees in the discussion agreed with Zelaya's suggestion about talking to Miller about Morales. Following the end of the 9 a.m. workbreak, the employees, while working, continued to talk about Zelaya's suggestion. About 10:20 a.m., leadman Gonzalez told Super- visor Adolphus that the assembly line was not moving fast enough because Zelaya was not work- ing fast enough. Adolphus went to Zelaya's work station on the assembly line. The other employees on the assembly line stopped their work in order to listen to Adolphus' discussion with Zelaya. Adol- phus asked about Zelaya's problem. Zelaya indicat- ed that he wanted to speak to President Miller about Plant Manager Morales, who Zelaya asserted was pushing the employees too hard, and that he also wanted to speak to Miller about the employ- ees' wages. Adolphus instructed Zelaya and the other employees to return to work, which they did. However, about 15 minutes later, Adolphus noticed Zelaya not working, and approached Zelaya's work station. As he did so, the other employees on the assembly line again stopped work to listen. Adolphus questioned Zelaya about his problem and asked him why he wanted to talk to President Miller. Zelaya replied that Morales was not treat- ing the employees properly, and was calling them names. When Adolphus suggested that Zelaya and the other employees speak with Morales about their complaints, Zelaya threw up his hands and loudly proclaimed that he did not wish 'to speak with anyone other than Miller. The other assembly line employees, who by this time had, gathered around, indicated that they agreed with Zelaya's remarks. Adolphus told the employees to return to work, ' and that he would attempt to arrange a meeting between the employees and either Miller or Morales. Later that day, during the lunchbreak, approxi- mately 50 employees gathered in the Respondent's parking lot and discussed the complaints they had against Morales. The employees agreed that instead of returning to work after lunch, they would go en masse to Miller's office to complain about Morales' mistreatment of the employees. As the group of employees, which had swelled to about 100, approached Miller's office, they were confronted by Adolphus, who asked them why 282 NLRB No. 83 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they were not working. Zelaya told him that they wanted to talk to Miller. Adolphus told the em- ployees to return to work. Zelaya stated that the employees would not return to work until they had talked to Miller. Adolphus replied that Miller was at lunch, that they should return to work, and that Adolphus would' arrange for them to speak with either Morales or' Miller later that day. By this time, many of the employees were speaking at the same time, some were cursing, and some were saying that they wanted to "get rid of' Morales. Zelaya told Adolphus that the reason the employ- ees wanted to speak with Miller rather than Mo- rales was because they believed that only Miller could remedy their complaints against Morales. Adolphus told the employees to return to work and that he would 'speak to Morales and arrange for several of them to meet with management to explain their problems . At Zelaya's suggestion, the employees agreed to postpone, any meeting with Miller until their afternoon workbreak, and to return to work in the meantime. Morales had been away from the plant from 10 a.m. until 1 , p.m. When Adolphus informed him of the above-described events, Morales gathered Adolphus, another supervisor, and several leadmen in his office to question them about these events. Several of the leadmen told Morales that very little production work was being done and that the situ- ation in the plant was almost at the point of becom- ing a riot. In response to Morales', question, lead- man Ruelas told Morales that the employees en- gaged in the above conduct because they wanted to be treated better by and have improved commu- nications with Morales. In response to another question by Morales, leadman Sierra told Morales that Zelaya and three or four other employees, whom Sierra named, were responsible for the work stoppage. Morales sent Ruelas to the assembly line to inform Zelaya and the other employees named by Sierra that Morales wanted them to come to his office to speak with Morales about the reasons for the work stoppage. Ruelas relayed Morales' instructions to Zelaya and the other employees named by Sierra. Each of these employees, including Zelaya, refused to speak with Morales; they told Ruelas that they were going to speak with Miller during their afternoon break period. When Morales was informed of Ze- laya's and the other employees' refusal to meet with him about the reasons for the work stoppage, he twice reissued, through supervisors, his instruc- tions that the employees meet with him in his office. They each continued to refuse to do so, as- serting that they had nothing to say to Morales. Finally, Morales himself, accompanied by two supervisors, went to the assembly line. Morales told Zelaya that he wanted Zelaya to accompany him back to his office so that they could talk. Zelaya loudly asked Morales why he wanted to speak with him. Morales repeated to Zelaya that he wanted to talk to him in his office. Zelaya replied in a loud voice the employees did not want to speak with Morales, but that they wanted to speak with Miller during the afternoon break period. Mo- rales then left the assembly line area. During his exchange with Morales, Zelaya appeared to be angry. He also continually moved and turned away from Morales during the exchange , making it diffi- cult for Morales to speak to him. Shortly after Zelaya's refusal to accompany Mo- rales to the latter's office, Morales returned to the assembly line area, accompanied by three police of- ficers and a plant security guard . According to Ze- laya's credited testimony (given through an official interpreter), Morales told Zelaya "you have no more work." Zelaya asked Morales why , he was "terminating" him; Morales replied, "I can't tell you anything. We have no more work and that is it." Zelaya then left the plant. Zelaya's termination slip, signed by Morales, lists the following reasons for termination: "Failure to follow instructions. Willfully creating work stoppage. Lost production time ,of 1 hour, causing 24 employees to stop work [due] to his own actions." B. Analysis and Conclusions The judge concluded that the Respondent dis- charged Zelaya because he refused to accompany Plant Manager Morales to his office; that Zelaya's refusal constituted insubordination, not protected by the National Labor Relations Act; and ' that the Respondent's discharge of Zelaya for conduct not protected by the Act was therefore not an unfair labor practice. - We do agree with the judge, for the reasons he sets forth in the final three paragraphs of section I,B,2 of his decision, that Zelaya was discharged because he refused to accompany Morales to his office, and not because of his role in the work stop- page. We disagree with the judge, however, over the issue of whether Zelaya's refusal to ` accompany Morales to the latter's office was, as the judge found, an act of unprotected insubordination or, as we find below, an aspect of Zelaya's participation in the protected concerted activity of presenting a group grievance to President Miller about the be- havior of Plant Manager Morales. As the judge notes, ' in determining whether an employee's assertedly protected conduct exceeds the scope of protection of the Act, the Board at- MILLCRAF F FURNITURE CO. 595 tempts to achieve a balance between the self-orga- nizational rights of employees under Section 7 of the Act and the property and managerial rights of employers.3 It is well settled that a concerted em- p]loyee protest of supervisory conduct is protected activity under Section 7 of the Act.4 However, the judge found that Zelaya's refusal to obey Morales' order to accompany him to the latter's office was a "f[agrant challenge to Morales' authority," under- mined the Respondent's' right to maintain discipline and order, and amounted to insubordination which the Respondent was under no obligation to con- done-particularly where, according to the judge, compliance by Zelaya with Morales' request that he accompany him to Morales' office "would not have interfered with Zelaya's right to participate in" the contemplated concerted activity. In his analysis, the judge treated Morales' order to Zelaya to accompany him to the office to be, separable from Morales'. order to Zelaya to discuss the reasons for the work stoppage. Focusing only on the former aspect of Morales' order, the judge found that the Respondent lawfully discharged Zelaya for insubordination for disobeying Morales' order as an exercise by the Respondent of its mana- gerial right to prevent an encounter in the work area from disrupting production. We do ' not agree with the judge's analysis. Rather, we find that Morales' order to Zelaya to accompany him to the office was inseparably inter- twined with Morales' order that Zelaya discuss with him, rather than Miller, the reasons for the work stoppage. The employees had already agreed among themselves to present their grievances to President Miller , rather than Plant _ Manager Mo- rales; indeed, the employees' grievances were about Morales. Thus, we find that Morales did not in- struct Zelaya to accompany him to his office simply as an exercise of managerial authority in an attempt to, reduce the tension on the work floor at that time. Rather, as the record makes clear, and as Zelaya had already been told repeatedly by lead- man Ruelas, Morales, wanted Zelaya and a few other named employees to come to Morales' office in order to discuss the reasons for the work stop- page. Moreover, Morales had already been in- formed by leadman Ruelas that the employees had, engaged in the work stoppage because of their complaints about the treatment they were receiving at the hands of Morales and their desire to convey their complaints about Morales directly to Presi- a See generally Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797- 798 (1945); NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956), 4 Herrick & Smith, 275 NLRB 398 (1985); Fair Mercantile Co., 271 NLRB 1159 (1984); Calvin D. Johnson Nursing Home, 261 NLRB 289 (1982); Pacifu Coast International Co., 248 NLRB 1376 (1980); Dreis & Krump Mfg., 221 NLRB 309 (1975). dent Miller. Morales had also already been told by his supervisors and leadmen that the employees in- tended to meet with Miller for that very purpose later that afternoon on their break period. There- fore, at the time Morales instructed Zelaya to ac- company him to his office, Zelaya had already been informed of Morales' intended - purpose in re- quiring Zelaya to -come to his office-i.e., to dis- cuss the reasons for the work stoppage-and Mo- rales had already been informed of,the reasons for the work stoppage-employee complaints about him and the desire to voice those complaints di- rectly to the Respondent's president. Thus, Zelaya and his' fellow employees were engaged in concert- ed action for a purpose known to Morales and pro- tected by the Act. We therefore find that . Zelaya's refusal to accom- pany Morales to the latter's office to, discuss with Morales the reasons for the work stoppage was not an unprotected act of insubordination, but was in- stead an integral aspect of Zelaya's and his fellow employees' protected concerted efforts to present their complaints about Morales directly to Presi- dent Miller, and not to- Morales. Thus, we con- clude that Zelaya's discharge was for his refusal to be diverted from the protected course of conduct- a direct meeting between the employees and Presi- dent Miller-which Zelaya and his fellow employ- ees agreed in concert among themselves to follow. In determining that Zelaya's refusal to accompa- ny Morales to his office to discuss the reasons for the work stoppage was an integral aspect of Ze- laya's exercise of his protected rights rather than an unprotected act of insubordination, we note also that the employees in question are not represented by a labor organization, and there, was no estab- lished grievance procedure, collectively bargained for or otherwise, which would have dictated a par- ticular Respondent official 'to whom the complaints about Morales should be submitted or a particular procedure to follow in making such, a submission. Rather, under these circumstances, the employees, including, of course, Zelaya, had the right under Section 7 of the Act to' seek to voice their griev- ances to the Respondent official of their choice-in this case, the Respondent's president. Thus, the Board has long held, with court approval, that the Act allows employees to engage in any concerted activity which they decide is , appropriate for their mutual aid and protection, unless that activity is specifically banned by another part of the statute, or falls within other well-established, proscriptions, such as violent conductor indefensible disloyalty.5 5 ,See NLRB v, Washington Aluminum Co., 370 U.S. 9, 16-17 (1962); NLRB v. Solo Cup Co., 237 F.2d 521, 526 (8th Cir. 1956); Johnnie Johnson Continued 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the instant case, the employees chose, in con- cert, to seek to voice their grievances about Mo- rales directly to the Respondent's president, and no other-a concerted course of conduct protected by the Act. In effectively ordering Zelaya to discuss with Morales, rather than with Miller, the employ- ees' grievances about Morales, and in discharging Zelaya for his refusal to do so, Morales directly and substantially interfered with Zelaya's exercise of his protected right to join with 'his fellow em- ployees in seeking to present their grievances about Morales directly to President Miller. Accordingly, we conclude that the Respondent's discharge of Zelaya, under the particular circumstances here, was in violation of Section 8(a)(1) of the Act.6 Tire Co., 271' NLRB 293, 294 (1984); Serendippity-Un-Ltd., 263 NLRB 768, 774 (1982); Plastilite Corp., 153 NLRB 180, 184 (1965), enfd. in perti- nent part 375 F.2d 343 (8th Cir. 1967). 6 In finding that Zelaya's refusal to accompany Morales to the latter's office to discuss the reasons for the work stoppage was,an unprotected act of insubordination, the judge relied principally on the Board's deci- sion in Roadway Express, 246 NLRB 1127 (1979). We find the judge's re- liance on Roadway Express to be misplaced in the context of this case. In Roadway Express, an employee threatened the terminal manager with physical harm while they were arguing in the loading dock area. The manager requested the employee to accompany him to a nearby office. The employee refused to accompany the manager ' to the office until the employee's union steward could be present. The manager left the loading dock, but later returned, accompanied by another supervisor, and repeated his earlier request that the employee accompany him to an office. The employee again refused, explaining again that he would not do so until his union steward could be present. The manager told the em- ployee that, inasmuch as he would not go to the office as requested, he was to leave the terminal altogether. The employee was suspended for the remainder of the day and received'a written warning for flagrant dis- obeying of orders. In finding no violation of the Act, the Board held that although the employee properly invoked his Weingarten rights (NLRB v. J. Weingar- ten, 420 U.S. 251 (1975)) when initially requested by the manager to ac- company him to an office, his refusal to leave the dock area removed him from the protection of the Act because the refusal "clearly undermined [the employer's] right to maintain discipline and order." The Board noted that the Supreme Court in Weingarten intended to strike a balance be- tween employee rights and legitimate employer prerogatives. Applying this principle in Roadway Express, the Board found that an employee's Weingarten rights attach when the interview begins, but that the employer has a right to require that the interview be conducted in an office away from the plant floor. The instant circumstances are much different from those in Roadway Express. The manager's request in Roadway Express that the employee leave the dock and accompany the manager to an office was clearly rooted in that employee's preceding misconduct in threatening the man- ager, and was made in an effort' to remove the dispute from the work floor and to deal privately with the employee's misconduct in an adjacent office. In the instant case, on the other hand, Morales' request to Zelaya to accompany him to his office to discuss the reasons for the work stop- page was not rooted in any preceding,or concurrent misconduct on Ze- laya's part. Indeed, as the judge found, and we affirm, Zelaya was dis- charged because of his refusal to comply with Morales' request, but not for any alleged misconduct preceding or accompanying that refusal. Zelaya did not disobey a work order, indeed, he was working when ap- proached by Morales. Zelaya's reason for refusing to accompany Morales to the latter's office to discuss the reasons for the work stoppage were made clear to Morales' emissaries and then to Morales himself: the em- ployees had decided among themselves to present their grievances about Morales to President Miller, and not to any other Respondent official. While Zelaya became loud and angry during his confrontation with Mo- rales, and repeatedly turned away from Morales, there is no showing that Zelaya was profane or insulting to Morales , or became so abusive or dis- ruptive as to warrant his removal from the workplace for safety or disci- CONCLUSIONS OF LAW , 1. The Respondent, Millcraft Furniture Compa- ny, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By discharging Saul P. Zelaya for engaging in protected concerted activity under Section 7 of the Act, the Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. Remedy Having found that the Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act, we shall order that the Respond- ent cease and desist therefrom and that it take cer- tain affirmative action designed to effectuate the purposes and policies of the Act. Specifically, we shall order that the Respondent offer Saul P. Zelaya 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 any other, rights and privi- leges. We shall also order that ° the Respondent make Saul P. Zelaya whole for any loss of earnings he may have suffered as a result of his unlawful discharge, with backpay to be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950); and with interest to be computed in the manner set forth in Florida Steel Corp., 231 NLRB 651 (1977): Finally, we shall order that the Re- spondent remove from its records any references to the unlawful discharge of Saul P. Zelaya, provide him with written notice of such 'removal, and inform him that his unlawful discharge will not be used as a basis for future personnel actions con- cerning him. See Sterling Sugars, 261 NLRB 472 (1982). ORDER The National Labor Relations Board orders that the Respondent, Millcraft Furniture Company, pline. Thus, under the circumstances, we find that in refusing to accom- pany Morales to his office to discuss the reasons for the work stoppage Zelaya was not challenging Morales' authority to manage the plant as he saw fit, but rather was simply resisting Morales' attempts to compel Zelaya to discuss the employees' grievances with Plant Manager Morales rather than with President Miller-the employer official chosen by the employees to hear their complaints about Morales. Thus, unlike the em- ployee in Roadway Express whose refusal to accompany the manager to an office was outside the scope of protection of the employees' Weingar- ten rights, Zelaya's refusal to accompany Morales to the latter's office was part and parcel of and-under the instant circumstances-inseparable from the exercise of his Sec. 7 ' right to engage in concerted activity for the mutual aid and protection of the employees. MILLCRAFT FURNITURE CO. Inc., Bell Gardens,, California, its- officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees because they engage in protect- ed concerted activities. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Saul P. Zelaya immediate and full rein- statement to his former position or, if that position no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings and other benefits suffered by reason of the Respondent's discrimination against him in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the discharge of Saul P. Zelaya and notify him in writ- ing that this has been done and that evidence of his unlawful discharge will not be used as a basis for future personnel'actions concerning him. (c) Preserve and, on request, make available to the Board or' its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due wider the terms of this Order. (d) Post at its place of business in Bell Gardens, California, copies of the attached notice ' marked "Appendix."7 Copies of the notice, on forms pro- vided - by the Regional Director for Region 21, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately , upon receipt and maintained for 60 consecutive days in conspicuous places including all places , where notices to employees are custom-' arily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 'r If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX 597 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United, States Government, The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT interfere with these rights given to you by law. WE WILL NOT discharge or otherwise discrimi- nate against employees because they engaged in protected concerted activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Saul P. Zelaya immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges, and WE WILL make him whole for any loss of pay or benefits he may have suffered because of the discrimination against him, plus interest. MILLCRAFT INC. FURNITURE COMPANY, Samuel D. Reyes Esq., for the General Counsel. Stephen F. Harbison, Esq. (Arque. Freston, Pearrson, Harbison & Myers), for the Respondent. Saul P. Zelya and Juan Buendia, on behalf of themselves. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge. The hearing in these cases, which was held on' December 5 and 6, 1984, is based on unfair labor practice charges filed on July 6, 1984, by Saul P. Zelya in Case 21-CA- 23289 and by Juan Buendia in Case 21-CA-232901 ' The charge in Case 21 -CA=23290-was amended on August 28, 1984. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against Millcraft Furniture Company, Inc. (Respondent) and a consolidated complaint issued on August 30, 1984, on behalf of the General Counsel of the National Labor Relations Board (the Board) by the Board's Regional Di- rector for Region 21, alleging that Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). The complaint alleges that Respondent violated Section 8(a)(1)'of the Act by discharging Charg- ing Party Zelya on June 15, 1984 , because he engaged in protected concerted activities, and violated Section 8(aXl) and (3) of the Act by discharging Charging Party Buendia on June 28, 1984, because of his union sympa- thies and activities. Respondent filed an answer denying the commission of the alleged unfair labor practices-' On the, entire record, from my observation of the de- meanor of the witnesses, and having considered the posthearing briefs, I make the following FINDINGS OF FACT THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting Respondent, a corporation, operates a plant in Bell Gardens, California, where it manufactures furniture. During the time material, this plant employed approxi- mately 210 employees, including the Charging Parties, Zelya and Buendia. None of the employees were repre- sented by a labor , organization. The plant's manager, Robert Morales, who assumed his position at the start of May 1984, was a more strict disciplinarian than his pred- ecessor. B. Zelya's Discharge (Case 21-CA-23289) 1. The evidence Saul Zelya, an alleged discriminatee, was employed by Respondent from April 1983 until his June 15, 1984 dis- charge. He worked in the Company's assembly depart- ment on assembly line 1 attaching furniture legs. On June 15, 1984, during the employees' 9 a.m. break period, an employee who worked on assembly line 1 complained to Zelya, and several of the other employees who worked with him on that line, about the manner in which Plant Manager Morales had reprimanded him ear- lier. This led to a discussion among the employees about the way in which Morales was conducting himself toward the employees. The employees commented that, during his approximately 6 weeks as plant manager, Mo- rales had committed "many injustices." Zelya suggested that the employees talk to Respondent's president, Miller, about Morales' mistreatment of the employees. The other employees agreed that it would be a good idea 2 Respondent, in its answer, admits that it meets one of the Board's applicable discretionary jurisdictional standards and that it is an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. Respondent, in its answer, also admits that the Union, Produce, Refriger- ated and Processed Foods and Industrial Workers Local 630, Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Sec. 2(5) of the Act. for them to speak with the Company's president about Morales' conduct. The line 1 employees returned to work at the end of their 9 a.m. break period and, while working, continued to talk about Zelya's idea that they talk to President Miller about Morales, in particular that they talk with him about Morales' practice of discharging employees with good work records for no apparent reason. At approximately,10:20 or 10:30 a.m., one of the lead- men on line 1, MacLovio Gonzalez, went to Alvin Adol- phus, Respondent's shipping department supervisor, and told him that line 1 was not moving fast enough and that the reason for this was that Zelya was not working fast enough. Zelya's ability to speak or understand English is limited. On the other hand, Adolphus' ability to speak or understand Spanish, Zelya's native language, is similarly limited. Accordingly, Adolphus, using Gonzalez as an in- terpreter, went to line 1 where Zelya was working. The other line 1 employees, who up to this point had all been working, stopped work in order to listen to Adolphus' conversation with Zelya. Adolphus asked about Zelya's problem. Zelya indicated that he wanted to speak to President Miller about Plant Manager Morales, who, Zelya stated, was pushing the employees too hard, and that he also wanted to speak to President Miller about the employees' wages. Adolphus responded by instruct- ing Zelya and the other employees to return to work, which they did. Thereafter, in approximately 15 minutes, Adolphus observed that Zelya was just standing at his work station without working. Adolphus went to Willy Gutierrez, the supervisor over the milling department, and asked him to accompany Adolphus to Zelya's work station and act as an interpreter. As they approached Zelya's work station, the other employees working on line 1 stopped work to listen. Adolphus, using Gutierrez as an interpreter, questioned Zelya about his problem and asked why he wanted to talk to President Miller. Zelya stated that Plant Manager Morales was not treat- ing the employees properly, that he was calling them names. Adolphus asked why Zelya and the other em- ployees did not speak with Morales about their com- plaints and, if Morales refused to speak with them, then talk to President Miller. Zelya, speaking in a loud voice, threw up his hands and stated that he did not want to speak with anyone other than President Miller. The other line 1 employees, who by this time had gathered around, indicated that they agreed with Zelya's remarks. This meeting lasted approximately 10 or 15 minutes and ended with Adolphus telling the employees to return to work and stating that he would try to arrange a meeting with either Morales or Miller and the employees- 3 2 The above description of what took place during the period of time between the employees' return to work after their 9 am. break period and their 11.45 am. lunch period is based on the testimony of Zelya, Adolphus, and Gutierrez. I have rejected Gonzalez' testimony that, be- cause of the employees' efforts to talk to President Miller and their un- happiness about being informed that Miller was not present in the plant to talk with them, line 1 was shut down from approximately 10:30 a.m. until the employees' 11:45 a.m. lunchbreak. The testimony of Gonzalez, whose testimonial demeanor was poor, was not corroborated by Adol- phus' testimony . Adolphus testified to the effect that the sole cessation of Continued MILLCRAFF FURNITURE CO. Later that day, during the employees' lunchbreak from 11:45 a.m. to 12:15 p.m., approximately 50 employees gathered together in the Company's parking lot and dis- cussed , the complaints ' they had against Plant Manager Morales. The meeting was conducted by MacLovio Gonzalez, also referred to as El Cholo in the record, who is fluent in both English and Spanish.4 The employ- ees complained that Morales had discharged many em- ployees without giving them a reason for their termina- tions; 3 that employees, could no longer visit the plant manager's office and speak to Morales about their prob- lems, whereas his predecessor had an open-door policy; and that, since Morales had assumed the position of gen- eral manager 6 weeks previously, the subject of a general pay raise for the employees had not been mentioned. The meeting ended with the employees agreeing that when the lunch period ended at 12 : 1.5 p.m., instead of returning to work, they' would go to the office of Respondent's president, Miller, and complain to him about Morales' mistreatment of the employees. As planned, a group of the employees, instead of re- turning to work at 12:15 p.m. when the employees' lunchbreak ended, walked through the assembly depart- ment toward the shipping and receiving department where President Miller's office was located. By the time the employees reached the entrance to the shipping and receiving department, their number had grown to ap- proximately 100. They were confronted there by Alvin Adolphus, the supervisor of the shipping department. He asked why they were not working. Zelya told him that they wanted to talk to President Miller. Adolphus, using leadman Gonzalez as an interpreter, told the employees to return to work. Zelya stated that the employees were not returning to work until they had talked to President Miller. Adolphus replied that Miller was out to lunch, that there was no one available for them to speak to at that time, that they, should return to work, and that he would arrange for them to speak with either Morales or Miller later that day. By this time , the employees were an talking at once, some in loud voices, some using pro- fane language, and some stating that they did not like the way Morales was "driving" the employees and that they wanted to "get rid of" him. Employees also stated that they did not believe Adolphus when he said Miller was out to lunch. Zelya told Adolphus that-the employees wanted to speak to Miller, rather than Morales, because they believed that only Miller could remedy their com- plaints against Morales. Adolphus told the employees to return to work and that he ' would speak to Morales and production on line 1 was when the employees on two occasions stopped work in order to' listen to him speak with Zelya . I realize Gutierrez testi- fied that, when Adolphus asked Gutierrez to accompany him to Zelya's work station as an interpreter, Adolphus told him that the employees were not doing any work. However, A dolphus testified to the effect that it was only Zelya whom he observed just standing around without work- ing and that the other workers stopped work only to listen to Adolphus' conversation with Zelya. I note that, although Zelya generally denied losing any production time before lunch, he did not specifically contra- dict Adolphus' testimony that he observed him standing at his work sta- tion at approximately 11, am. doing nothing. In any event, Adolphus, when he testified about this particular matter, impressed me as a credible witness. 4 The native language of a large number of Respondent's employees is Spanish and, as a result, their understanding of English is limited. 599 arrange for several of them to meet with management to explain their problems. Zelya suggested to the employees that they postpone their meeting with President Miller until the employees' 2:30 p.m. break, period, and in the meantime they should return to work. After discussing this among themselves, the employees agreed to accept Zelya's suggestion and returned to work.5 The employ- ees were away from their work stations anywhere from 20 to 30 minutes. Plant Manager Morales left the plant at approximately 10 a.m. on June 15 and did not return until approximate- ly 1 p.m. On his return, he discovered that Supervisors Adolphus and Gutierrez were waiting for him. Morales testified they told him that after the employees' lunch break Adolphus had stopped a group of employees, who should have been working, from going to President Mil- ler's office and persuaded them to return to work. Mo- rales asked the two supervisors to come into his office and he also summoned several of the leadmen • to the office. He questioned them about the situation. Morales testified that some of the leadmen told him there was very little production work being done, they did not be- lieve they would be able to meet their daily production quotas, and the situation 'in the plant was almost at the point of becoming a riot. When Morales asked why the employees had stopped work to go to speak with Presi- dent Miller, the leadman from line 3, ' Marcos Ruelas, told him that the employees had engaged in this conduct because they wanted to be treated better by Morales and have better communications with him.' In response to Morales' inquiry about which 'employees were responsi- ble for the work stoppage, Ruelas replied that all of the employees were equally responsible. However, the lead- man on line I, Margarito Sierra, informed Morales that Zelya and three, or four other employees who were em- ployed on line 1, whom Sierra named, were responsible. Morales asked Ruelas to go ,to line 1 and tell the employ- ees named by Sierra that he wanted them to come'to his office because he wanted to speak to them about the rea- sons for the work stoppage.6 Ruelas went to line 1 where he spoke to Zelya and the other three or four employees named by leadman Sierra as having been responsible for the work stoppage. He told them Morales wanted them to come to his office be- cause he wanted to speak to them about the, reasons for the work stoppage. Each of the employees, including 5 The description of this incident is based on the composite testimony of Adolphus, Zelya, Ruelas, and Gonzalez. They did not contradict one another, in significant respects, when they testified about this incident. I have, however, rejected Gonzalez' testimony that the employees did not return to -work for about 1 hour because it is not consistent with either Zelya's (20 minutes) or Adolphus' (30 minutes) testimony- 6 In relying on Ruelas' above-described testimony, I have considered that Supervisors Adolphus and Gutierrez and Plant Manager Morales tes- tified in effect that Zelya's was the only name mentioned by the leadmen as being the employees' spokesperson or being responsible for the work stoppage. However, when they gave their testimony, their testimonial de- meanor was poor, whereas the testimonial demeanor of Ruelas, who, in- sofar as this record reveals, was a disinterested witness, was good. I also note that Adolphus' testimony that in response to Morales' inquiry lead- man Gonzalez told Morales that Zelya was responsible for the.lines being down and that Zelya was "the problem" was contrary to the testimony of Respondent's witness Gonzalez, who testified that he was not even present at this meeting. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Zelya, stated they would not speak with Morales and that they were going to speak with President Miller during the afternoon break period. Ruelas went. back to the office and told Morales what the employees had said. Morales instructed him to return to line 1 and again to tell the employees to come to his office so he could talk with them. Ruelas again relayed Morales' message to the employees, including Zelya, who repeated their earlier refusal.' When Morales was informed by Ruelas that the employees still would not come to his office, Morales then sent Supervisor Adolphus to speak to them. Adol- phus went to line 1 and talked to Zelya and four of the other employees named by leadman Sierra, and told them that Morales wanted to speak to them in his office. Each one of them, including Zelya, refused to go to Mo- rales' office. They informed Adolphus they had nothing to say to Morales.8 Immediately after being informed by Ruelas and Adol- phus that the line 1 employees whom he wanted to speak to in his office had refused to come to the office, Mo- rales, ' accompanied by Supervisors Adolphus and Gutier- rez, went personally to line 1. Morales stopped at Zelya's work station and told Zelya that he wanted Zelya to ac- company him back to his office so that they could talk. Zelya responded by stating that he had nothing to say to Morales and that the employees intended to speak to President Miller during their afternoon break period. Morales returned to his office. It is undisputed that Zelya spoke to Morales in a loud voice, and that he was per- spiring and shaking as he talked and had the demeanor of someone who was angry. Also Zelya, as he spoke, con- stantly moved and turned his body, thus making it diffi- cult for Morales to speak to him. It is also undisputed that there were several employees who worked in Zelya's immediate work area who were in a position to witness Zelya's refusal to ' go with Morales to his office.9 Shortly after Zelya's refusal to accompany Morales back to his office, Morales returned to line 1 accompa- nied by police officers. They went, to Zelya's work sta- tion where Zelya was working.1 ° Morales told Zelya 9 In crediting Ruelas' testimony that , pursuant to Morales' instruction he asked three or four other employees besides Zelya to come to Mo- rales' office, I have considered the contrary testimony of Morales and Gonzalez. I have credited Ruelas' testimony because his testimonial de- meanor was good, whereas the testimonial demeanor of Morales and Gonzalez was poor. I also note that Zelya's testimony corroborated Ruelas' in this respect. He credibly testified that Ruelas told four other employees, besides Zelya, that Morales wanted to speak with them and that all five of them refused to go to Morales' office. s The above description of the events when Supervisor Adolphus went to line 1 is based on Zelya's testimony. I have considered the contrary testimony of Adolphus and Gonzalez and have credited Zelya's account because his testimonial demeanor was good , whereas Gonzalez' and Adolphus' testimonial demeanors were poor. 9 In view of this, I have not decided whether, as Morales' testified, 20 or 25 employees were gathered around Zelya's work station listening to Morales' conversation with Zelya or whether, as Zelya testified, all the emloyees were working during the conversation . In all other respects there are no significant contradictions between Zelya 's and Morales' ver- sions of what took place during this conversation. - 10 I have credited Zelya , that during this period he was working. I have discredited leadman Gonzalez' testimony that, from the time Mo- rales left Zelya's work station to Morales' return, no work -was done by anyone because, as Gonzalez testified, approximately 100 employees from the Company's several departments were just standing in the vicinity of line 1 trying to find out from Zelya what was happening. Gonzalez' testi- that he had been terminated. When Zelya asked the reason for his termination, Morales refused to give ,him the reason. After being assured by,the police tha r he was not being arrested, Zelya gathered together his personal belongings and left the premises. The aforesaid description of the events which took place after Zelya's refusal to go to the office, as request- ed by Morales, is based on the testimony of Zelya, whose testimonial demeanor was good. I have carefully considered and rejected the testimony given by Respond- ent's several witnesses about what occurred during this period. Their testimonial demanor was poor when they testified about the events which they said occurred during this period. In addition, as described in detail below, there are significant internal inconsistencies in the testimony of some of these witnesses, and their testimo- ny, instead of being mutally corroborative, was, in signif- icant instances, inconsistent, and Morales' affidavit given to the Board soon after Zelya's discharge omits to men- tion certain significant matters which Morales now claims to have taken place. Morales testified that, almost immediately after Zelya's refusal to obey his personal request to come to the office, Morales went back upstairs to the office where he tele- phoned Respondent's vice president, John Cox, and that Cox telephoned the police. Cox, on the other hand, testi- fied it was Morales who telephoned the police. Morales and Cox testified they went downstairs separately, first Cox and then Morales, and that they met the police out- side the plant from where they entered the assembly area. Supervisor Adolphus, on the other hand, testified that he observed Morales and Cox come down the stairs together and, rather than go outside the plant, he ob- served them walk immediately to Zelya's work area. Su- pervisor Gutierrez gave yet another version of what oc- curred. He testified that when, Morales returned to his office he telephoned Cox, who came to Morales' office, and the three of them-Cox,, Morales, and Gutierrez- immediately went to Zelya's work station. Supervisor Adolphus gave yet another version of what occurred. He testified that, immediately after Zelya refused to obey Morales' instruction to go to Morales' office, Morales went back to his office where he told Supervisors Adol- phus and Gutierrez and the leadmen, who were still in the office, that he intended to terminate Zelya for "dis- obedience." Morales, however, specifically denied that he ever made this remark. Likewise, the testimony of Respondent's several wit- nesses is in hopeless conflict when it comes to the role which they claim Cox played in Zelya's discharge. Su- pervisor Gutierrez testified that Cox, who does not speak or understand Spanish, used Gutierrez as a translator, and told Zelya that Cox could solve any of Zelya's prob- lems, just like Miller, but that Zelya stated he wanted to talk to Miller, not Cox. Supervisor Adolphus at first un- equivocally testified that he was not able to overhear what Cox said to Zelya because at the time he was 35 feet away at line 2. Later, Adolphus inconsistently testi- monial demeanor, as I have previously indicated, was poor, whereas Zelya's was good MILLCRAFT FURNITURE CO. 601 fled that- he was only 4 feet away 'from Zelya and over- heard Cox, in English, trying to tell Zelya that Cox wanted to talk with him and that Zelya told Cox he wanted Jo speak with Miller. Adolphus also testified, contrary to Gutierrez, that it was Gonzalez, not Gutier- rez, who was translating for Cox. Gonzalez, on the other hand, denied this and testified that he, observed Zelya move away from Cox before Cox even had a chance to say anything to him. Cox testified that when he arrived at Zelya's work station, accompanied by Gutierrez and, Morales, Zelya was screaming in Spanish and gesturing to a group of 60 or 70 employees who were gathered in front of line I. Gutierrez, according to Cox, told Cox that Zelya was telling all the employees he wanted them to stop work and follow him out of the plant, where- upon, Cox testified, he tapped Zelya on the shoulder to get his attention and told him, in English that "I will talk to you. I am the vice president of this company." In re- sponse, Zelya turned around to look at Cox and an- swered "no." He then turned back toward 'the employees and resumed his screaming in Spanish. Neither Gutierrez nor any of Respondent's other witnesses corroborated this testimony. I find it difficult to believe that, if Zelya was screaming and gesturing to a group of 60 or 70 workers that they should join him in ceasing to work, one of Respondent's other witnesses, in particular Gu- tierrez or Morales, who were close by, would not have remembered this. As decribed, supra, Gutierrez gave a different account of what occurred than Cox, and Mo- rales merely testified that Cox spoke in English to Zelya and "was trying to" ask him what his problem was," and that Zelya "sort of shrugged his shoulder." Lastly, Morales' prehearing affidavit, which he submit- ted to the Board_ during the investigatory stage of this case not too long after Zelya's termination, significantly fails to mention Cox's name or Cox's alleged role in the events leading up to Zelya's termination." In view of the poor demeanor of Respondent's several witnesses when they testified, about Cox's involvement, and their above-described inconsistent testimony, Lam of the view that the reason Morales, during the investigation of this case, failed to inform the Board about Cox's involvement in Zelya's termination was that Cox was not involved. I farther find that Morales' testimony and the testimony of Respondent's other witnesses about the events which supposedly occurred after Zelya refused to obey Mo- rales' request that he go to Morales' office were not credible. 2. Analysis and conclusions "To determine whether an employee's conduct is pro- tected by the Act, the Board forges `an adjustment be- tween the undisputed right to self-organization assured to employees . . . and the equally undisputed right of em- ployers to maintain discipline in their establishments."' Hamburg Industries, 271 NLRB 683, 684 (1984), and 11 Morales' affidavit in pertinent part reads as follows: I left the site [after Zelya declined to meet with him] and called the police to have him removed, since I could see that I could not get him removed. The police came five to 10 minutes later. The police came into the assembly department, and I took them to Zelya. I told Zelya to follow me with ,=the pohee. cases cited. In applying this balancing test, the Board has held that, if an employer requests an employee to leave the work area and go to another location where further discussion can occur in private, the employee acts at his peril if he declines to do so, even though the employee's refusal occurs in the context of Section 7 activity. Road- way Express, 246 NLRB 1127 (1979); see also Joseph F. Whelan Co., 273 NLRB 340 (1984). In Roadway Express, an employee's supervisor requested that the employee leave the work area and accompany him to an office. The employee refused, stating that he would do, so only when his union steward could be present. After refusing the supervisor's second request to go to the office, the employee was disciplined for disobeying orders. The Board (Chairman Fanning and Member Jenkins dissent- ing) found that the employee properly invoked his Wein- garten rights" when initially asked to accompany his su- pervisor to the office, but that his refusal to leave the work area "clearly undermined [the employer's] right to maintain discipline and order," and subjected him to whatever sanctions the employer deemed appropriate to impose. Roadway Express, 246 NLRB at 1128. The Board reasoned that its interpretation 'of Weingarten had to be tempered by a sense of industrial reality to avoid inter- ference with legitimate employer prerogatives and, in this regard, expressly adopted the rationale of the admin- istrative law judge set forth in Chrysler Corp., 241 NLRB 1050, 1053 (1979), as follows: The employer has a legitimate and substantial inter- est in reserving the unencumbered right to request an employee to report to anoffice in order to avoid an encounter on the plant floor which may tend to disrupt production and interfere with other employ- ees' job performance. An employer should have the right, if it chooses, to carry such an encounter to an office away from the production area. See Roadway Express, 246 NLRB at 1128 fn. 4. In this case, Zelya's refusal to report to the office as directed by Plant Manager Morales clearly undermined Respondent's right to maintain discipline and order, espe- cially as it occurred in the employees' work area and was witnessed by other employees. Zelya's refusal to ac- company Morales to his office constituted a flagrant challenge to Morales' authority, and I see no reason that Respondent should be required to condone Zelya's insub- ordination, particularly when, as here, there is no show- ing that compliance with Morales' instruction would have prevented Zelya from joining, the other employees and expressing his grievances about Morales' treatment of the employees directly to Respondent's president. In other, words, assuming that the employees' concerted conduct-going directly to Respondent's president in a group and voicing their grievances to him about Mo- rales-was protected concerted activity, Zelya's compli- ance with Morales' request that he accompany him to the office would not have interfered with Zelyes right to participate in that concerted activity. It is for these reasons I find that, by refusing to obey Plant Manager 12 NLRB v. !. Weingarten, 420 U.S. 251 (1975). 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Morales' order to leave the production area and accom- pany Morales to his office, Zelya engaged in unprotected insubordination. Roadway Express, supra. Having found that Zelya engaged in unprotected in- subordination when he refused to obey Plant Manager Morales' request to leave the work area and accompany him to the office, the question remaining is whether this was the reason Respondent discharged Zelya, or wheth- er he was discharged for joining with the other employ- ees in their efforts to meet with Respondent's president to express their grievances about Plant Manager Morales' treatment of the employees. Morales testified that Zelya was discharged because of his "insubordination"-his refusal to obey Morales' in- struction to come to his office. Morales' testimony is sup- ported by the following: the timing of the discharge, coming as it did hard on the heels of Zelya's refusal to obey Morales' personal request that he accompany him to his office; Morales' reputation as an extremely strict disciplinarian; the lack of evidence of animus by Morales toward the employees because of their concerted effort to complain directly to Respondent's president about Morales' alleged mistreatment of the employees; and Mo- rales' failure to disipline any,of the other three or four employees who leadman Sierra had told him were jointly responsible with Zelya for causing the employees' work stoppage connected with the employees' unsuccessful at- tempt to speak directly to Respondent's president about Morales' alleged mistreatment of the employees." S Although the above-described circumstances support Morales' testimony that Zelya was discharged because of his insubordination, Zelya's change-of-status report, which was approved by Morales, states, in effect, that Zelya was discharged not only for his insubordination but for the additional reason that he was responsible for the employees' work , stoppage which occurred after lunch on June 15 when they tried to meet with Respond- ent's president instead of returning to work.14 Assuming that the second reason set forth in Zelya's change-of- status report is sufficient to establish a prima facie show- ing that Zelya's role in the employees' concerted work stoppage was a motivating factor in Respondent's deci- sion to discharge him,15 I agree with Respondent's con- tention that the record establishes Plant Manager Mo- rales would have discharged Zelya even absent Morales' belief that Zelya was, responsible for the work stoppage. In, my opinion, Respondent has shown that Zelya's refus- al to obey Plant Manager Morales' personal request that he accompany Morales to his office, which was wit- la I recognize that none of the other employees who Morales was told were jointly responsible with Zelya for the work stoppage were dis- charged, even though, like Zelya, they ignored the requests of leadman Ruelas and Supervisor Adolphus to go to Morales' office. However, unlike Zelya, these other employees did not disobey Morales' personal re- quest that they accompany him to the office. 14 The change-of-status, report reads as follows: "Employee Terminat- ed: Reason(s): Failure To Follow Instructions. Willfully Creating Work Stopage [sic]. Lost Production Time Of 1 Hour, Causing 24 Employees To Stop Work Do [sic] To His Own Actions." 15 I have drawn no inference of illegality from Morales' refusal to give Zelya a reason for his discharge because his refusal was consistent with past practice. The record shows that Morales has the reputation among the employees of discharging employees with good work records without giving them any reason for their discharges. nessed by other employees, is such gross insubordination that it would have provoked Zelya's discharge even absent Morales' belief that Zelya was responsible for the employee work stoppage involved in this case. ^ This is particularly true when, as here, Plant Manager Morales is a strict disciplinarian who has the reputation's of dis- charging good workers for no apparent reason, and there has been no showing that Morales excused such egre- gious misconduct on the part of other employees. I have considered that the other employees who Morales was told were jointly responsible with Zelya for the work stoppage were not discharged, even though, like Zelya, they did not obey leadman Ruelas' and Supervisor Adol- phus' requests to go to Morales' office. However, unlike Zelya, none- of these other employees disobeyed Morales' personal instruction that they go to his office. It was only Zelya who, with other employees witnessing the event, disobeyed Morales' personal request that he ac- company him to his office. In view of the foregoing, I conclude that Respondent discharged Zelya because he refused to accompany Plant Manager Morales to his office and that this refusal con- stituted unprotected insubordination.16 I therefore shall recommend that the consolidated complaint be dismissed insofar as its allegations encompass the charge filed in Case 21-CA-23289. C. Buendia's Suspension and Discharge (Case 21-.;CA- 23290) 1. The evidence a. A chronology Charging Party Juan Buendia was employed by Re- spondent at its Bell Gardens, California plant from July 1, 1980, until his June 28, 1984 discharge. He was em- ployed as a spray painter in the Company's finishing' de- partment and worked Tuesday through Friday, 6 a.m. to 4:30 p.m. Mill Department Supervisor Willy Gutierrez was in charge of the department where Buendia worked. Gutierrez took his orders from the person responsible for the plant's operation, Plant Manager Robert Morales. During the time material, there were approximately 210 employees employed in Respondent's Bell'Gardens, Califoria plant. None of these employees were represent- ed by a labor organization. In April 198419 the Union commenced a campaign to organize Respondent's Bell Gardens employees. Buendia supported the Union's. campaign by attending several or- ganizational meetings held at Ford Park, a public park near the plant. Also during April he verbally solicited employees to support the Union and gave union authori- zation cards to 20 employees. He engaged in his union activities during his break periods in the Company's parking lot and, outside working hours, at Ford Park and at several check-cashing stores frequented by the em- ployees on paydays. The employees failed to respond to 16 In view of this finding, I do not reach the issue of whether, as con- tended by Respondent, the employees' concerted activities were not pro- tected concerted activities. 17 All dates refer to 1984 unless otherwise specified. MILLCRAFT FURNITURE CO 603 the Union's campaign and, because of this lack of sup- port, thti Union discontinued the organizational campaign in late April or in early May On Monday, June 18, the Union resumed its organiza- tional campaign when Buendia visited the Union's office and union organizer Cruz Martinez gave him several pe- titions to circulate among the employees for their signa- tures. These petitions stated that the employees who signed wanted the Union to be their collective-bargain- mg agent and that they were seeking a Board-conducted secret-ballot election. On June 19 and 20, Buendia, assist- ed by three or four other employees, solicited employees to sign the petitions. They apparently succeeded in per- suading approximately 90 percent of the Company's em- ployees to sign the petitions. Buendia personally persuad- ed 40 employees to sign the petitions he circulated. He engaged in this activity in the company parking lot during his break periods and, during his nonworking hours, at Ford Park and several check-cashing stores fre- quented by the employees. On June 20, after work, Buendia returned to the union office where he told union organizer Martinez that they had secured sufficient signatures for the Union to peti- tion the Board for an election and gave Martinez the completed petitions Thereafter, from June 21 until his June 27 suspension, Buendia, during his break periods in the Company's parking lot, continued to speak to em- ployees in favor of union representation. On June 27 at 1.30 p.m, Supervisor Gutierrez told Buendia that Plant Manager Morales wanted to speak to him.18 Gutierrez escorted Buendia to Morales' office where, in Gutierrez' presence, Morales spoke to him Morales stated that he had noticed Buendia's attendance record was bad. Buendia acknowledged that this was true and, in response to Morales' inquiry about the reason for his poor attendance record, stated that he had car trouble and a problem getting up in the morning. Morales showed Buendia the 1984 absentee calendar which the Company's personnel department maintained for him. He directed Buendia's attention to the month of June 1984, which showed that Buendia had been absent from work on Friday, June 1, and late for work on both Friday, June 8, and Friday, June 15 Buendia stated that the timeclock had not been working correctly on the 2 days he was late Morales pointed out to him that on June 15 he did not come to work until the middle of the day so it could not have been the malfunction of the timeclock that had caused him to be late Buendia ex- plained that on June 15 on his way to work his automo- bile had broken down on the freeway, that he had tele- phoned Gutierrez and explained his predicament, and that Gutierrez had given him permission to come to work late after he had seen to it that his automobile was towed away Gutierrez denied that Buendia had tele- phoned him on June 15 for permission to be late for work Morales asked Buendia, "[W]hat can we do with you?" Buendia answered that this was Morales' decision. 19 The description of Buendia's June 27 meeting with Morales is based on a composite of Buendia's, Morales', and Gutierrez testimony When they testified about this meeting, their testimony was, in significant re- spects, mutually corrobrative and in no respect did they contradict one another Morales stated that he intended to review Buendia's entire record and to discuss the matter with Supervisor Gutierrez and that in the meantime Buendia was sus- pended from work immediately and should not report for work the next day at the usual 6 a.m. starting time, but should report at 7 a.m to Morales' office. Immediately following his June 15 interview with Mo- rales, Buendia accompanied Supervisor Gutierrez to Gu- tierrez' office where they had a brief conversation. Buen- dia asked why he had been suspended Gutierrez stated that he did not know the reason , and stated that Morales was "running things his way " Buendia stated that until his conversation with Morales that day no one had com- plained to him about his June 15 tardiness, and that he believed the real reason for his suspension was not his at- tendance record but his activities on behalf of the Union. Gutierrez once again stated that he did not know why Buendia had been suspended . He told Buendia to report to the Company the next day at 7 a .m., rather than at the usual 6 a. m. starting time. When Buendia left the plant on June 27 , after his sus- pension, he telephoned union organizer Martinez and told him that he had been suspended for the rest of the day and had been instructed to come to the plant the next morning at 7 a .m. to talk with Plant Manager Mo- rales. Martinez advised him to be patient, and told him that union representatives intended to distribute leaflets later that day at the end of the employees ' work shift and the next day intended to hold a short meeting with the emplloyees outside the plant shortly before the em- ployees went to work. The union representatives came to the plant on June 27 shortly before 4 30 p in , when the work shift ended, and stationed themselves at the entrance to the company parking lot. As the employees left, they handed them leaflets explaining the benefits of union representation. Buendia joined them at the entrance to the parking lot and assisted them in distributing the leaflets to the em- ployees. He did this for approximately 10 minutes Previ- ously when Buendia engaged in his activities on behalf of the Union, as described in detail supra, he had been "se- cretive" because he feared that he might be fired if the Company learned of his union activities Buendia testified that the reason he now brought his support for the union out into the open was because he felt that he had been suspended for his union activities and that Morales in- tended to fire him , so he had nothing to lose by bringing his union activities into the open On June 28 several union business representatives came to Respondent's parking lot at approximately 5.30 a.m. and distributed leaflets describing the benefits of union representation to the employees as they entered the parking lot.19 They were joined by four of Respond- ent's employees, one of whom was Buendia, who assisted them in handing out the leaflets . Buendia also spoke to employees in the parking lot and advised them that there would be a brief union meeting held in the parking lot shortly before the start of work Thereafter , at approxi- mately 5:40 a.m., a group of between 30 and 50 employ- 19 The employees began work at 6 a in 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees, gathered together in the parking lot near the coffee truck. They were addressed by some of the union busi- ness agents and by Buendia, who encouraged them to support the Union. After the employees were gathered together and the meeting . had begun, Supervisor Gutier- rez and Plant Manager Morales came out from the, plant. Morales was initially approximately 60 feet away from the employees and union business agents. Buendia point- ed out Morales to Walter Englebert, the Union's princi- pal representative. Englebert left the employees and walked toward Morales, who was walking toward the employees. When they met, Englebert introduced him- self, told Morales that the Union represented more than a majority of Respondent's employees, and asked that Re- spondent recognize and bargain with the Union . Morales stated that he was a very busy man and that Englebert would have to speak to Morales' secretary to arrange for an appointment. Englebert tried to hand Morales a letter from the Union demanding recognition and asked to speak to Respondent's president. Morales refused to accept ,the letter and stated that Respondent's president was not in the plant. ' Englebert then walked back to where the employees were gathered with the other union business agents. Morales, who apparently was on his way to the coffee truck parked in the area, stopped where Englebert was standing and told him that the union busi- ness agents were on private property . Englebert stated that they would leave when the coffee truck left. Mo- rales did not press the issue and apparently continued on his way to the coffee truck for his coffee. Buendia, during Englebert's conversation with Morales, was standing with another union business agent about 7 feet away.20 After the union business agents left the plant parking lot on June 28, Buendia, after waiting for a short period of time, entered the ,plant at approximately 6:30 a.m. and spoke to Supervisor Gutierrez in his office . Buendia asked whether he should go to work. Gutierrez an- swered in the negative, stating that Buendia had to talk with Plant Manager Morales first. Buendia waited in Gu- tierrez' office until 10 a.m. Whenever he asked Gutierrez when Morales intended to speak with him, Gutierrez re- plied, in effect, that he should be patient. Finally, at 10 a.m., Gutierrez told Buendia that he had been fired and gave him his final paychecks. Buendia asked for the reason that he was fired. Gutierrez told him that he did not ' know the reason. Buendia observed that his final paychecks did not include accrued vacation pay. gutier rez told him to wait in his office while he went and spoke to Morales about Buendia's vacation pay. When Gutierrez returned, approximately 30 minutes later, he handed Buendia a check for his vacation pay and asked him to sign a sheet of paper which stated that the reason for Buendia's termination was "due to poor attendance." 20 The above description of what took place in the Company's parking lot on June 28 before work ' is based on a composite of Buendia's and Englebert's testimony. When they testified about what took place at this time, they impressed me as credible witnesses . Morales testified that he did not observe Buendia in the parking lot that morning and that he did not observe him distributing union literature to the employees or solicit- ing the employees, nor was he informed by anyone else that Buendia had been engaged at this time in this conduct. Buendia refused to sign it, explaining that he did not feel this was the reason for his discharge. Gutierrez lrespond- ed by stating that he did not know the reason for Buen- dia's discharge. He explained that Plant Manager Mo- rales "wanted to run things his way." The above description of the manner in which Buendia was notified about his termination is based on Blendia's testimony. Gutierrez testified that on June 28 at approxi- mately 10 a.m. he was present in Morales' office when Morales told Buendia about his discharge . He testified that the only thing which was stated during this meeting was that Morales told Buendia he had made up his mind and his decision was that he had to terminate Buendia "because of his bad record," and that after he was told of his termination Buendia said nothing and went with Gutierrez to Gutierrez' office to wait for his final pay- checks. Morales, on the other hand, presented a com- pletely different picture of what supposedly took place. He testified that he went over each of the written repri- mands which had been given to Buendia for his poor at- tendance, read them to Buendia, and asked if Buendia had signed them and knew that he was at the state ' of discipline where he could be -terminated. When Buendia answered "yes," Morales told him that "based on this, I am going to have to terminate you." Buendia answered "fine" and Morales told him to go with Gutierrez to get his paychecks. I have rejected Gutierrez' and Morales' testimony about the manner in which Buendia was notified about his termination and have credited Buendia's testimony because Buendia's testimonial demeanor was good, whereas Morales' and Gutierrez' was poor. In addition, as described above, Morales' and Gutierrez' testimony was not mutually corroborative; rather, Morales' testimo- ny about the alleged meeting did not jibe with Gutierrez' testimony. Also, on a matter of significance which_ was closely related to the alleged June 28 termination inter- view, Gutierrez and Morales gave contradictory testimo- ny. Morales testified that on June 27 after the end of the work shift he met with Gutierrez, at which time he in- formed Gutierrez that he felt Buendia should'be termi- nated because of his poor attendance record and asked for Gutierrez' opinion;,and that they then discussed the matter, with Gutierrez agreeing that Buendia should be fired for his poor attendance record. Gutierrez contra- dicted Morales' testimony. He testified that no such meeting between himself and Morales' occurred.21 It is for the foregoing reasons that I have credited Buendia's and rejected Morales' and Gutierrez' testimony about the manner in which Buendia was notified about his termina- tion. On June 29 the Union, in Case 21-RC-17463, filed a representation petition with the Board's Regional Office asking for a secret-ballot election in a bargaining unit of production, maintenance, and truckdriver employees em- ployed at Respondent's Bell Gardens, California plant. 21 I find it difficult to believe that if such a meeting had in fact oc- curred, as Morales testified , Gutierrez would have forgotten about it. In view of the contradictory testimony of Morales and Gutierrez and Mo- rales' poor testimonial demeanor, I am persuaded that Morales did not consult with Supervisor Gutierrez about his decision to fire Buendia. MILLCRAFT FURNITURE CO. 605 Respondent and the Union thereafter entered into an election agreement, which was approved by the Board's Regional Director, and, pursuant to this agreement, a secret-ballot representation election was conducted in the, above-described unit by the Board on July 16, which was won by the Union by a substantial margin. There is no evidence that Respondent, through its su- pervision and management, ever made any statements which would warrant the inference that Respondent was either hostile toward union representation or opposed to its employees supporting the Union or any other, union. b. Buendia's attendance record Buendia, who began work for Respondent on July 1, 1980, received a written disciplinary warning on June 28, 1983, which stated that he was always late, that he did not show up for work when asked, and that- he did not notify Respondent when he was unable to come to work. Buendia was notified in this written warning that he would be given a 1-week suspension without pay if he continued to engage in this conduct. On January 27, 1984, Buendia was issued a second written disciplinary warning, This warning stated that Buendia had been late and absent from work on several occasions and that Re- spondent would no longer tolerate this conduct, and warned that Buendia would be terminated if he contin- ued to engage in this conduct. The record shows that from the date of his January 27 written disciplinary warning until his June , 27 suspension, Buendia was absent from work once, June 1, and tardy 11 days: February 9 and 10; May 18, 25, and 31; and June 8, 15, 20-22, and 26.22 As I have noted previously, Morales became plant manager on approximately May 1- The supervisor re- sponsible for Buendia's department, Willy Gutierrez, tes- tified that he had several conversations with Morales about Buendia's tardiness. When asked when the first such conversation occurred, he testified: "They hap- pened pretty often. He [Buendia] comes late often, so we always discuss him." However, it is undisputed that prior to Buendia's June 27 suspension Morales did not speak to him about his absences or tardiness. There is also no evi- dence that Supervisor Gutierrez or Buendia's immediate supervisor ever spoke to him about his absences or tardi- ness following his January 27 written warning. This was true even when Buendia, due to car trouble, was 28 min- utes late on June 21 and approximately 6-1/2 hours late on June 15.2 3 22 The employees' absentee calendars maintained by Respondent's per- sonnel department state that a number written in red denotes an unex- cused absence, whereas a number written in black denotes an excused ab- sence. Buendia's June 1 absence was marked in black on his absentee cal- endar, thereby indicating that it was regarded by Respondent as an ex- cused absence. I recognize that Morales testified that the use of black crayon, as distinct from red, in marking the employees' absentee calen- dars did not mean that the absences were excused. I have rejected his testimony because of his poor testimonial demeanor ; his testimony was contrary to the explanation given for the use of red and black markings, which is set ,forth on the face of the employees' absentee calendars; and Respondent's personnel clerk, who is responsible for maintaining the em- ployees' absentee calendars, was not called to corroborate his testimony. 88 Buendia testified that on June 15 when his car broke down on the freeway on his way to work he telephoned the plant and spoke to Super- visor Gutierrez, who gave him permission to report to work late after he -Respondent -has only one timeclock for its production employees. Due to the long line of employees waiting to punch this timeclock, sometimes employees who have ar- rived for work on time punch in late. In this regard, the record shows that, during the week ending June 22, 64 of the 189 employees ' who used the timeclock punched in anywhere between 1 and 6 minutes late on one or more days and that, during the next week on June 26, 52 of them punched in between 1 and 8 minutes late.24 Also on occasion the timeclock did not punch an employee's timecard accurately, and it showed the employee as being tardy when in fact the 'employee's card had been punched in on time.25 c. Morales' reason for suspending and discharging Buendia Morales, who became plant manager on approximately May 1, testified that 2 or 3 weeks before Buendia's June 28 discharge he instituted a new policy whereby each day an employee was late for work Respondent 's person- nel clerk was supposed to record this in the employee's absentee calendar,26 and that, when the personnel clerk observed clusters of tardiness and/or absences, the clerk was supposed to bring this state of affairs to Morales' at- tention. Morales testified that on June '27, pursuant to this policy, the personnel clerk brought to him Buendia's personnel folder, which included Buendia's two written disciplinary warnings for poor attendance described in detail above and Buendia's 1984 absentee calendar. In view of the two disciplinary warnings in Buendia's per- sonnel folder, Morales, according to his testimony, decid- ed to suspend Buendia in order to give himself time to decide whether Buendia's recent poor attendance record warranted his discharge.27 He further testified that in had seen to it that his automobile was towed away. Gutierrez was unable to deny that he received such a phone call. Under the circumstances, I have credited Buendia's testimony because, when he testified about this phone call, his testimonial demeanor was good. The fact that Morales tes- tified his experience has been that he was not able to place a personal telephone,call from an emergency freeway telephone box does not, in my view, impugn Buendia's testimony. 24 Buendia punched in 4 minutes late on June 20, 1 minute late on June 22, and 8 minutes late on June 26. He did not testify that this tardiness was caused in whole or in part by long lines at the timeclock. 25 Buendia testified that this happened to him once, during the middle of June 1984, and that he called the mistake to the attention of his imme- diate supervisor, Donald Warren, and his department supervisor, Willy Gutierrez: 88 Respondent's personnel department maintains separate absentee cal- endars for each employee that show which days of the month an employ- ee is either absent or late. Daily, between 7 and 8 a.m., someone from the personnel department, through the use of Respondent's computer which is hooked up to Respondent's timeclock, determines which employees are late or absent from work that day and marks this information on the em- ployees' absentee calendars. 27 Morales' affidavit, submitted to the Board's Regional Office on August 8 in connection with the Board's investigation of'Buendia's unfair labor practice charge, is inconsistent with Morales' above-described testi- mony that the two disciplinary warnings he discovered in Buendia's per- sonnel file triggered his June 27 decision to suspend him. In the affidavit, referring to his June 27 meeting with Buendia, Morales states, in perti- nent part, "I think we [referring to himself and Supervisor Gutierrez] did tell [Buendia] that he was suspended for the rest of the day. We did not have his records with us at that time. I did not know about his warnings given in 1983 and 1984 at this time. I don't recall if warnings were dis- Continued 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eventually deciding to discharge Buendia he relied on the same records which had caused him to suspend Buendia, the absentee calendar and disciplinary warn- ings, but the reason he did not discharge him immediate- ly was that Respondent recently had changed personnel clerks, which effected Respondent's recordkeeping, and due to this he asked the personnel clerk to be sure he had been given all of the information pertinent to Buen- dia's situation. When asked if there was any other reason he suspended Buendia on June 27 rather than discharge him, Morales testified, "[N]o, I don't like to normally fire people right there on the spot until I really look at it, and sit down and talk it out." In response to Buendia's unfair labor practice charge filed in Case 21-CA-23290 on July 6, Respondent, through its labor relations consultant, Kenneth R. White, Inc.,28 on July 11 and August 14, wrote identical letters to the Board agent in charge of investigating the charge, copies of which were mailed to Respondent, which, in pertinent part, read: Juan Buendia was discharged for excessive absen- teeism and/or 'tardiness; violation of Company policy-after receiving several warning notices. Any union activity he may or may not have en- gaged in was and is of no concern of the Company; only his performance as an employee-means being dependable and on the job when due. We enclose the following for substantiation: copies of the absentee calendar of Buendia for 1983 and 1984 (note he was absent the last 2 fridays in May and the first 3 fridays in June). Warning Notice of June 28, 1983 (signed by Claimant), Warning Notice of January 1, 1984, (signed by Claimant), and a copy of the Termination Report on June 28, 1984 (which claimant refused to sign before witnesses). In view of the above we respectfully request, this charge be dismissed as having been filed without foundation, of fact; no - employee (regardless of reason) could be absent ' on 5 consecutive fridays and remain employed by any company. Buendia's absentee calendar for 1984, which was en- closed with these letters, did not indicate that Buendia was late for work on June 26 or from June 20 through 22. As far as the calendar is concerned, Buendia was last late for work on June 15 and since that time his attend- ance was perfect. It is undisputed that when Buendia was suspended on June 27 and discharged on June 28 his absentee calendar maintained by Respondent and examined by Morales did not show Buendia had been late for work on June 26 or cussed at all during this time." Morales was unable to explain this incon- sistency between his testimony and affidavit . As a matter of fact, he testi- fied that what was contained in the affidavit was true because when he gave the affidavit the events were fresher in his mind 28 Besides representing Respondent during the investigation of this case, Kenneth R. White, Inc. filed the answer on behalf of Respondent in this case. from June 20 through 22;29 it showed a perfect attend- ance record after June 15. However, Morales' testified that he knew Buendia was tardy on June 26 end from June 20 through 22 because the personnel clerk save him this information. In this regard, he testified that he was "pretty sure" the personnel clerk on June 27 had given him Buendia's timecards for that period in June 1984. He later qualified this testimony, now testifying : "[Vjaguely, very vaguely, I remember having the time cards there." Considering Morales' poor testimonial demeanor, con- sidering his poor recollection of how he supposedly learned of Buendia's June 26 and June 20 through'22 tar- diness, considering that on June 27 Morales did not men- tion to Buendia that Buendia had been late for work on those dates, and considering, as described in detail supra, that Respondent's explanation offered to the Board's Re- gional Office during the investigation of this case signifi- cantly omitted to mention that, in deciding to fire Buen- dia, Respondent relied on Buendia's tardiness on June 26 and June 20 through 22, I am persuaded that, when Mo- rales suspended and fired Buendia, Morales did not,real- ize Buendia had been late for work on June 26 and June 20 through 22 and this tardiness played no part in Buen- dia's suspension and discharge . I cannot believe that, if Morales had known about this tardiness and had relied on it in , making his decisions to suspend and discharge Buendia, Respondent would not have included this infor- mation in its correspondence to the Board justifying its reasons for Buendia's suspension and discharge. 2. Discussions and conclusions a. Buendia's suspension As described in detail supra, Juan Buendia, the em- ployee who initiated and spearheaded the resumption of the Union's organizational campaign at Respondent's plant; was suspended from his job shortly after having engaged in these activities when, on June 27, Plant Man- ager Morales notified him that he was suspended from work pending a further review of his record because of his poor attendance. The complaint does not specifically allege Buendia's June 27 suspension violated the Act. However, the June 27 suspension is closely related ' to Buendia's June 28 discharge, which is alleged as a viola- tion of the Act, and the parties fully litigated the ques- tion of whether Buendia's suspension violated the Act. Respondent contends that the General Counsel has failed to prove Buendia was suspended because of his union activities because, among other things, the record does not establish Respondent knew of Buendia's union activities at the time of his suspension or that Respond- ent was opposed to the employees being represented by the Union. The General Counsel contends that knowl- edge of Buendia's union activities, as well as the illegal motivation for his suspension, may be inferred from the particular circumstances surrounding the suspension. The General Counsel relies on these circumstances: (1) Buen- 29 There are indications in the record that, during the week ending June 22, there were other employees besides Buendia who were late for work whose tardiness was not marked in the employees ' absentee calen- dars by the personnel clerk. MILLCRAFT FURNITURE CO. 607 dia frequently solicitied other employees, to support the Union, not only away from the Company's premises but also in the company parking lot during his break periods; (2) Buendia was suspended soon after he had initiated and spearheaded the resumption of the Union's organiza- tional campaign; (3) Plant Manager Morales knew about the Union's campaign and believed that Buendia was a prounion sympathizer; (4) Buendia's supervisor, Gutier- rez, told him that he did not know the reason for Buen- dia's suspension and failed to, deny Buendia 's statement that he had been suspended because of his union activi- ties; (5) it was not until his June 27 suspension that any supervisor , spoke to Buendia about his 1984 absences and tardiness; (6) the "cluster" of Fridays on which Buendia was absent and/or tardy and which Morales testified prompted him to review Buendia's attendance record re- sulting in Buendia's suspension took place approximately 12 days before Buendia's June 27 suspension; (7) Morales was unable to recall the names of employees , other than Buendia, whose attendance records he examined and there is no evidence that other employees were suspend- ed and/or terminated as the result of such an examina- tion;S° (8) as described in detail supra, Morales' testimo- ny concerning his decision to suspend Buendia was in- consistent in significant respects with what he stated in his prehearing affidavit; and (9) Respondent, prior to the hearing, updated Buendia's 11984 absentee calendar for June to show that he had been late on June 20 through 22 and June 26, even though when Morales relied on the information in the calendar to suspend and discharge Buendia the calendar did not show Buendia as having been late for work on those days. The aforesaid circumstances relied on by the General Counsel are insufficient in my opinion to establish that Respondent was aware of Buendia's union activities at the time it suspended him. There is no direct evidence that Respondent, at the time it suspended him, was aware of Buendia's active support for the Union. The record is devoid of evidence that Plant Manager Morales or any other company representative indicated they knew Buendia , was advocating unionism. In addition, Morales, the person who decided to, suspend Buendia, testified that, although he know about' the Union's orga- nizational campaign and believed the majority of the em- ployees, including , Buendia, were prounion, he was un- aware of Buendia's union activities. S 1 Not only is Mo- rales' testimony uncontradicted but, when viewed in the context of the, whole record, it is not inherently implausi- ble. 'Quite the opposite, Morales' disclaimer of any knowledge of Buendia's union activities at the time of his suspension is supported by Buendia's admission that prior to his suspension he did not openly publicize his support for the Union, but instead attempted, to., keep his union activities a secret from Respondent. Morales' disclaimer is further supported by the lack of evidence that Re- 30I note there is no evidence employees with the same or similar at- tendance records as Buendia who, like Buendia, had received written dis- ciplinary warnings were treated by' Morales less severely than Buendia. $1 Morales testified that he believed Buendia was prounion not because of any personal knowledge or information acquired from other persons, but because of his belief that the vast majority of the employees were prounion. spondent tried to identify the employees who were prounion or who were engaged in union activities. I rec- ognize that under certain circumstances the Board will infer an employer knew about the union activities of a particular ' employee based on its so-called small-plant doctrine.3 2 Assuming, arguendo, that Respondent's plant, which employed 210 employees during the time material herein, is a, "small plant," I am of the opinion that under the circumstances of this case the small-plant doctrine does not support an inference of knowledge . Buendia made a deliberate effort to conceal his union organizing activities from the eyes and ears of supervision and, as described in detail supra, none of his union activities took place inside the plant . Regarding his union activities which took place on the company parking lot during his break periods, there is no indication that supervisory per- sonnel were present. In view of Buendia's efforts to keep his union activities secret, it is reasonable to infer that su- pervisors were not present, or at least that conversations were conducted in such a way as to prevent supervisors from learning of the nature of the conversations. Conse- quently, I conclude that any inference which otherwise might have been drawn concerning Respondent's knowl- edge of Buendia's union activities as a result of the size of Respondent's operations is negated by the circum- stances under which those activities took place. K & B Mounting, 248 NLRB 570 (1980). The foregoing reasons, particularly Buendia's effort to conceal his union activi- ties from the eyes and ears of Respondent, the lack of evidence that Respondent attempted to identify those employees who were union activists or sympathizers, the fact that Buendia's union activities took place outside Re- spondent's plant, and the lack of evidence that any repre- sentatives of Respondent were ever present when Buen- dia engaged in his union activities, have persuaded me that the circumstantial evidence relied on by the General Counsel is not sufficient to prove that Respondent knew about Buendia's union activities when it suspended him. I also note that the above-described circumstances, relied on,by, the General Counsel to establish that a moti- vating factor in Respondent's decision to suspend Buen- dia was his union activities, omit any, mention of evi- dence which would support an inference of antiunion animus or that Respondent was even opposed to union representation. The reason for this is that there is no evi- dence Respondent manifested animus toward either the Union for organizing the employees or Buendia or any offits other employees for their union activities or proun- ion sympathies. Not only is there no evidence of any other unfair labor practices committed by Respondent, but also there is no evidence that Respondent's repre- sentatives made statements or engaged in other conduct which would support the inference of antiunion animus or that Respondent was opposed to the union represent- ing its employees. This is despite the fact that the Union's organizational campaign lasted almost 1 month and involved almost 200 employees. In short, there is no evidence, direct or circumstantial, which supports the,in- 32 Wiese Plow Welding Co., 123 NLRB 616 (1959). 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Terence of antiunion animus or that Respondent was op- posed to the Union representing its employees. Based on the foregoing, I find that the two essential elements-knowledge and antiunion animus-were lack- ing in the General Counsel's case, and for this reason the General Counsel has failed to make a prima facie show- ing sufficient to support the inference that Buendia's union activity was a motivating factor in Respondent's decision to suspend him from work .33 The evidence relied on by the General Counsel , when viewed in the light most favorable to the General Counsel 's case, at most only raises an inference that Respondent 's use of Buendia's poor attendance record to justify his suspen- sion was pretextual and not Respondent 's real reason. I recognize that an employer's pretextual reason for disci- plining an employee may in certain circumstances sup- 'port an inference that the employer knew of the employ- ee's union activities. The circumstances in this case, for the reasons set forth previously , do not support such an 'inference. Rather, as the Board stated in Bayliner Marine Corp., 215 NLRB 12: At the outset, we note that our inquiry does not involve an attempt to pinpoint the most reasonable motivation for an employee's discharge, for it is well established that an employer may discharge an employee for good reason, bad reason, or no reason at all. Rather it is the General Counsel's burden to establish a particular motivation on the part of the employer, a discriminatory motivation. Because company knowledge of union activity is a funda- mental prerequisite in the establishment of that mo- tivation, it is also the General Counsel's burden to prove by substantial evidence the existence of such knowledge. Suspicion surrounding the discharge will not replace the need for such proof. In the instant case, not only does the record fail to estab- lish that at the time of Buendia's suspension Respondent knew of his union activities, it also fails to establish union animus on the part of Respondent or that Respondent was even opposed to the Union representing its employ- ees. It is for these reasons I find that the General Coun- sel has failed to prove that a motivating factor in Re- spondent's decision to suspend Buendia was his union ac- tivities. b. Buendia's discharge In support of the contention that a prima facie show- ing sufficient to support the inference that Buendia's union activity was a motivating factor in Respondent's decision to discharge him has been made, the General Counsel relies on the following circumstances: (1) the several considerations set forth previously in connection with the General Counsel's argument that Buendia's aS To find that Buendia's suspension violated the Act because Re- spondent was motivated by his union activity, it was essential for the General Counsel to prove that Respondent knew about his union activi- ties at the time of his suspension and that Respondent had animus toward such activities. Where knowledge or animus cannot be inferred, no viola- tion can be found. See, e.g., Bonin Packing Co., 208 NLRB 280 (1974) (animus); Bayliner Marine Corp., 215 NLRB 12 (1974) (knowledge). union activities were a motivating factor in Respondent's decision to suspend him; (2) on June 28, prior to his dis- charge, as described in detail supra, Buendia openly en- gaged in union activity in the company parking lot when, for at least part of the time, members of supervi- sion, including Plant Manager Morales, were present; (3) as I have found supra, Morales' testimony about the cir- cumstances surrounding his decision to punish Buendia by discharging him was contradicted in significant re- spects by Supervisor Gutierrez' testimony; and ^(4) Mo- rales failed to consult with Supervisor Gutierrez about his decision to discharge Buendia. I am of the 'opinion that, even assuming that after Buendia's suspension but before his discharge Plant Manager Morales learned Buendia was a union activist, the aforesaid circumstances relied on by the General Counsel are more than conter- balanced by other circumstances in the record as follows. At the outset, I note that, as I have found supra, Buen- dia's June 27 suspension did not violate the ' Act; Re- spondent did not suspend him because of his union ac- tivities. It is also significant that Buendia's suspension was not the penalty imposed to punish him for his mis- conduct. Rather, it is clear , that the suspension was only temporary to give Plant Manager Morales time to con- sider the severity of the punishment which should be im- posed on Buendia for his misconduct . Therefore, the question is not simply whether the record 'establishes that a motivating factor in Morales' discharge decision was Buendia's union activity; it is whether the record estab- lishes that a motivating factor in Morales' decision to impose the ultimate penalty of discharge, rather than a lesser penalty, was based on Buendia's union activity. I am of the opinion that the record as a whole fails to es- tablish this. The record reveals that it was called to Mo- rales' attention that Buendia had 'been absent or tardy during a cluster of Fridays starting Friday, May 18, through Friday, June 15; that prior to Morales' employ- ment as plant manager Buendia had received two written diciplinary warnings for his poor attendance; and that the last of these warnings, which issued January 27, had placed Buendia on notice that he would be discharged if this misconduct continued. When viewed in the light of the lack of evidence of union animus by Respondent, and the evidence of Morales' reputation as a'very strict disci- plinarian who discharged employees with good work records for no apparent reason, these circumstances mili- tate against a finding that Buendia's union activity was a motivating factor in Morales' decision to discharge him rather than to impose a lesser penalty for his misconduct. This conclusion is further supported by the lack of evi- dence that Morales treated employees more 'leniently than Buendia in circumstances similar to Buendia's. It is for all of these reasons that I find the General Counsel has failed to make a prima facie . showing , sufficient to support the inference that Buendia's union activity was a motivating factor in Respondent's decision to discharge him. I therefore shall recommend that the consolidated complaint be dismissed insofar as its allegations encom- pass the charge filed in Case 21-CA-23290. [Recommended Order for dismissal omitted , from pub- lication.