BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SWIFT
TRANSPORTATION CO., INC.
and Case
21-CA-38735
INTERNATIONAL
BROTHERHOOD
OF
TEAMSTERS
Lindsay Parker and Ami Silverman, Attys., Counsel for the General Counsel,
Region
21,
Ronald Holland and Janelle Milodragovich, Attys., Counsel for Respondent,
Littler
Mendelson, P.C.,
Michael T. Manley, Atty.,
Charging Party,
Ricardo
DECISION
I. Statement of the Case
LANA
PARKE, Administrative Law Judge. This
matter was tried in
II. Issues
1. Did Respondent violate Sections 8(a)(3) and (1) of the Act by discharging employees Anthony Herron, Bismark Sanchez, Marco Diaz, and Salvador Gonzalez?
2. Did Respondent independently violate Section 8(a)(1) of the Act by the following conduct: interrogating employees about their union activities; creating the impression that employees' union activities were under surveillance; threatening to terminate employees because of their protected concerted and union activities; threatening that support for the Union would be futile; threatening that Respondent would shut down its facility if employees continued to support the Union, and threatening to terminate employees who continued to support the Union.
III. Jurisdiction
At all relevant times, the Respondent, an
IV. Statement of Facts
Unless otherwise explained, findings of fact herein are based on party admissions, stipulations, and uncontroverted testimony. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I find the following events occurred in the circumstances described below during the period relevant to these proceedings:
- The Respondent’s Operations
1. The
The
Respondent, based in Phoenix Arizona, with 37 major terminals in 26 states and
Mexico, operated a facility in Wilmington, California (Swift yard or Wilmington
facility), a city located in the Los Angeles Basin. For 15-20 years, the
By the
beginning of 2009, the Respondent employed approximately 160 drivers at the
The individuals named below, holding the stated positions with the Respondent, were supervisors within the meaning of Section 2(11) of the Act and/or agents of Respondent within the meaning of Section 2(13) of the Act:
Jerry Moyes (Mr. Moyes) CEO
Gary Fitzsimmons (Mr. Fitzsimmons) Vice President in charge of Security
Brennan Obray (Mr. Obray) Terminal Manager
Mark Donahue (Mr. Donahue) Corporate Security Investigator
Shawn Driscoll Director of Security
2. Employment Applications and Hiring Policies
The Respondent’s driver employment applications contained the question, “Have you ever been convicted of a criminal offense?” If an applicant marked the “yes” box, the application required explanation of the circumstances. The applications contained the following provision:
I acknowledge [by signing the application] that omissions of employee’s moving violations, suspensions, accidents, and criminal convictions will constitute falsification of the employment application, which will result in immediate termination of employment.
After submitting an application for
employment and receiving an offer of employment, each prospective driver
attended an orientation presented by the Respondent. At the orientation, applicants were informed
that failure to disclose all criminal convictions after age 18 on the
application would be considered application falsification. Applicants were also informed that the
company would conduct a criminal background check, and applicants were permitted
to amend their applications and were encouraged to provide any missing
information regarding convictions. The
Respondent did not consider amendments made to the application at that time to
constitute application falsification. The Respondent conducted initial criminal
background checks on all new employees, utilizing in part an outside security
company to perform the checks. The
Respondent’s initial new-hire background checks for its
After the Respondent obtained criminal background information, the Respondent compared the information to employee application statements and interviewed the applicant if further information was wanted. While certain convictions such as those for theft, drugs, and aggressive behavior generally disqualified an applicant from employment, even those as well as other convictions did not preclude employment if the convictions had been truthfully disclosed on the application. Discrepancies between applications and criminal activity reports resulted in an investigation of the circumstances by the Respondent’s security staff.
If, either before or after employment, the Respondent obtained information of convictions that had not been disclosed on an employment application, the security staff interviewed the applicant or the employee to determine whether the applicant should be hired or the employee retained. In Mr. Fitzsimmons’ words:
Sometimes we interview them if we can’t make a clear-cut decision as to whether we want to hire this person or not hire them or terminate their employment for false application or not, then we’ll interview them to get more information about their conviction.[4]
Written company policy required employees to cooperate in investigations conducted by the security staff upon pain of termination.
- Pre-Trip Equipment Inspections
DOT regulations required each driver to perform several inspections during the course of a work shift. Each driver was to conduct a pre-trip inspection (pre-trip) of his/her assigned truck before leaving the Respondent’s yard to pick up a load at one of the ports. The pre-trip included checking tires, mud flaps, lights, and other equipment. At the port, the driver was to pre-trip the chassis (the trailer base upon which a container was loaded), the container, and, once again, the truck. If the driver discovered any regulatory defect, the driver was not supposed to leave the port but was to go to “roadability,” a maintenance service provided at the port (port roadability) where the problem was repaired, if possible.[5] If the problem could not be repaired, the driver was to notify the driver manager. When drivers brought loads to the Swift yard, they were expected to “post-trip” the equipment, checking the same items covered in the pre-trip inspection.
Containers bearing hazardous material loads were required to bear placards that were affixed with a sticky substance and centered on all four sides of the container, explaining the content of the container. DOT regulations forbade the posting of placards atop other placards. Inapplicable placards were to be removed entirely including the sticky substance used to mount them. Placards were required to be posted at a specific height on containers so that when containers were stacked together, as on rail cars, the placards were easily visible. Rail lines refused to accept improperly placarded containers. Drivers hauling hazardous material loads were expected to check the placards as part of the pre-trip. Placard problems identified at the ports were corrected by port personnel; problems otherwise identified were the drivers’ responsibility.
B. Concerted Protected and Union Activity
Beginning
early in their employment a number of the Respondent’s drivers, including
Anthony Herron (Mr. Herron), Bismark Sanchez (Mr. Sanchez), Marco Diaz (Mr.
Diaz), and Salvador Gonzalez (Mr. Gonzalez), discussed among themselves
complaints about the Respondent’s hours of work, rate of pay, failure to pay
overtime, and dissatisfaction with the
driver managers’ treatment of them. Mr. Herron raised with Mr. Obray drivers’
complaints that
they were asked to work beyond what
they considered to be the appropriate work schedule.[6]
Mr. Herron believed that the Respondent should not ask employees to work
beyond eight hours, and he showed his disagreement with the company’s contrary
policy by leaving work every day at 3:30 p.m.[7]
Prior to January, Mr. Obray received a multiplicity of complaints from
numerous drivers about those and other working conditions at the facility.
In early
November 2008, Alfredo Salazar, organizer for the Union, contacted Mr. Diaz
about union organization at the
According to Mr. Herron, in early January Mr. Obray
told Mr. Herron in the presence of 15-20 other drivers that the
At the
beginning of January, Mr. Obray approached DM Tejeira, Mr. Diaz, and Nick _____
and asked them to talk to the drivers about selecting one employee
representative for every 25 drivers for the purpose of communicating driver
complaints and concerns to him. In the
second or third week of January, Mr. Herron organized a meeting of 30-60 employees
of the night and day shifts in the company parking lot during the shift
change. By a show of hands, the drivers
elected six employee representatives: three for the day crew, Mr. Herron, Mr.
Diaz, and Nick____, and three for the night crew, Jimmy ____, Oscar Navarro,
and Elias _____ (the Employee Committee).
As the employees were thus occupied, Mr. Obray came to the group and
inquired whether the meeting had to do with union organization.[8] Mr. Herron said the employees were not
talking about the
Mr. Obray’s instruction to the Employee Committee was to meet with him every Friday to present employee complaints and to resolve them if possible. The first meeting took place the last week of January at which time Mr. Herron, Mr. Diaz, and Nick _____ met with Mr. Obray in his office. Mr. Herron informed Mr. Obray of the following complaints: five or six drivers had problems with their checks and disorganized truck parking made it difficult for the crews to easily find their assigned trucks.
Sometime in early February, a contretemps at work occurred between drivers Hugo Molina (Mr. Molina) and Mr. Lopez concerning Mr. Lopez’ accusation that Mr. Molina intended to report drivers who were not performing their work duties to management (Molina/Lopez incident).[9] Mr. Diaz became involved in the dispute, and Mr. Molina later reported to a driver manager that he had felt threatened by his coworkers.
A second meeting between Mr. Obray and the Employee Committee took place sometime in February with all six representatives in attendance. Mr. Herron raised two issues: (1) discipline of a driver that had been, in the committee’s view, unfairly suspended for receiving a faulty equipment ticket for which the maintenance department, not the driver, was at fault and (2) failure to reemploy a driver who had left work for a month on a family emergency but, because of a paperwork error, had no job when he returned. Mr. Obray agreed to remove the suspension of the first driver and to reinstate the second.
A third meeting between Mr. Obray and members of the Employee Committee occurred on February 5 and centered on an assignment given to Mr. Sanchez on that day. It is undisputed that in the afternoon of February 5, DM Tejeira told Mr. Sanchez to see to the repair of two containers that Mr. Sanchez had earlier delivered to the Swift yard, one of which was missing tail lights and the other a mud flap, and to deliver them, seriatim, to the rail yard.
According to Mr. Sanchez, he calmly pointed out to DM Tejeira that it was nearly time to clock out and that he could not make the deliveries because he had to pick up his son. DM Tejeira told Mr. Sanchez to make the deliveries or he would be terminated for refusing a load. According to DM Tejeira, Mr. Sanchez was angry and profane, saying, “I am not going to f___ing do it.” When DM Tejeira told him he had to do it, Mr. Sanchez said, “F___ this. I am not going to do it. F___ this…I am tired of this…f___ you, I am not going to do it.”
Mr. Sanchez went to Mr. Obray’s office with DM Tejeira following. According to Mr. Sanchez, he told Mr. Obray that he did not want to refuse the loads, but that he had a son to pick up, which he couldn’t do if he had to fix both containers and deliver them. He did not yell at Mr. Obray or threaten him in any way. Mr. Obray and DM Tejeira’s accounts of the interaction differ significantly from Mr. Sanchez’. According to Mr. Obray and DM Tejeira, Mr. Sanchez was red-faced and angry and in the ensuing interchange pounded on Mr. Obray’s desk. Mr. Obray said Mr. Sanchez sprayed spittle as he yelled and the veins in his neck stood out. Mr. Sanchez said he would not take the “f___ing containers back” because it was raining, that he had made
plans, and that he was done for the day. He said that the containers had been fine when he dropped them in the Swift yard and that he believed he was being sabotaged. Mr. Obray said the company had cameras in the yard, and he would look into it.
Mr. Sanchez acknowledged that ultimately Mr. Obray told Mr. Sanchez to fix the containers and to deliver only one load to which Mr. Sanchez agreed. According to Mr. Obray when he first proposed the compromise, Mr. Sanchez said, “I’m not f___ing taking anything.” Even after Mr. Sanchez agreed to take one container to the rail yard, he repeatedly said, “That’s f___ing bulls___,” and he kicked the door open as he left the office.[10]
After he left Mr. Obray’s office, Mr. Sanchez complained to Mr. Diaz and Mr. Herron that Mr. Obray had directed him, under threat of termination, to deliver two containers to the Santa Fe railroad yard in spite of Mr. Sanchez’ objection that he needed to go home because of child-care issues. Mr. Diaz and Mr. Herron gathered with Mr. Sanchez and about 30-40 other drivers in an enclosed area of the facility referred to as the driver area.
Mr. Herron telephoned Mr. Obray, saying that Mr. Diaz and he would like to talk to Mr. Obray about a situation with Bismark Sanchez. Mr. Obray entered the driver area, and the drivers surrounded him as he walked toward Mr. Herron.[11] Mr. Obray was surprised to see Mr. Sanchez in the group, as he had expected him to be working toward getting the container to the rail yard. According to Mr. Obray, Mr. Sanchez “was in [his] face screaming…that ‘this is f___ing wrong. I don’t know why you’re f___ing doing this. You treat us like f___ing sh__’,” while Mr. Herron standing nearby said, “This is not fair what you’re doing to Bismark [Sanchez]. If you make Bismark [Sanchez] take this load to the rail, then us drivers will not show up tomorrow.”
Mr. Obray was shocked because Mr. Herron had not told him he would be meeting with a large group of drivers. He said, “You guys ambushed me; this is bulls___.” As Mr. Herron and Mr. Obray talked, the crowd of drivers engaged in a group protest regarding Mr. Sanchez and employer unfairness to the drivers, talking over each other with raised voices.[12] According to Mr. Herron, after he and Mr. Obray discussed the matter, Mr. Obray said, “Well, at least let [Mr. Sanchez] take one container,” to which Mr. Sanchez agreed.[13] Mr. Obray testified that he told the drivers, “It doesn’t help you guys for me to be out here getting yelled at and arguing with Anthony [Herron],” and he left the group. Mr. Obray felt threatened by the confrontation, particularly by Mr. Sanchez’ “yelling and spitting in [his] face.” Thereafter, Mr. Sanchez reported to Mr. Obray that the electrical problems on his assigned rig could not be readily repaired, and Mr. Obray told him he could go home.
C. Mr. Donahue’s Investigation into Vandalism
On February
5, about 15 minutes after Mr. Sanchez met with Mr. Obray concerning his
two-load assignment, DM Tejeira told Mr. Obray he had a flat tire on his car,
which was parked in front of the facility office. Investigation revealed that a back tire on
Mr. Obray’s car had a two-inch cut in its sidewall, damage presumably wreaked
by an unidentified vandal. Mr. Obray
believed a driver had cut the tire.
When, shortly thereafter, Mr. Obray met with the large group of drivers
in the driver area, as described above, and saw that Mr. Sanchez had not set
about delivering the one load he had been assigned but was still at the facility
and was still upset, Mr. Obray began to suspect Mr. Sanchez of cutting his
tire. Following his interaction with the
employee group in the driver area, Mr. Obray telephoned Mr. Donahue at the
Respondent’s
On February
6, Mr. Donahue visited the
During the same visit, DM Raudales reported to Mr. Donahue that driver Mr. Molina had been threatened by other drivers. Mr. Donahue interviewed Mr. Molina in an office at the Swift yard. Mr. Molina told Mr. Donahue that Mr. Diaz and Mr. Lopez had threatened him in the parking lot. Mr. Molina also told Mr. Donahue that a tire on his personal vehicle had been slashed while it was parked at the Swift yard and that the vehicle had been broken into while parked at his residence.
After interviewing Mr. Molina, Mr. Donahue met with Mr. Diaz.[14] Mr. Donahue asked about the Molina/Lopez incident. After Mr. Diaz summarized facts of the incident, Mr. Donahue wanted to know why Mr. Lopez had taken the issue to Mr. Diaz rather than going to Mr. Molina, asking Mr. Diaz, “Why do you think that you’re a leader or a spokesperson to all these other drivers?” Mr. Diaz said that because of his fluency in both Spanish and English, some drivers felt comfortable talking to him, and he told Mr. Donahue about the Employee Committee. Mr. Donahue asked Mr. Diaz to write a statement about the creation of the Employee Committee and about the Molina/Lopez dispute, which Mr. Diaz did. Thereafter, Mr. Donahue asked Mr. Diaz what he would say if Mr. Donahue told him that the company had caught Mr. Sanchez on camera slashing Mr. Obray’s tires. Mr. Diaz said that was hard to believe. Mr. Donahue told Mr. Diaz that if Mr. Sanchez had a friend that could say Mr. Sanchez had slashed the tires and felt sorry for what he had done, Mr. Donahue would be willing to use his resources to have him merely fired without criminal action being taken. After a pause, Mr. Diaz said, “I can’t do this.” Mr. Donahue said he understood and ended the conversation.
After
interviewing Mr. Diaz, Mr. Donahue spoke with Mr. Lopez who denied that he or
Mr. Diaz had threatened Mr. Molina. At
Mr. Donahue’s request, Mr. Lopez provided a brief written statement about the
Molina/Lopez incident. Mr. Lopez
testified at the hearing that during his February 9 meeting with Mr. Donahue,
the investigator asked whether Mr. Diaz was a union leader. In a written statement given to the
On February
11, Mr. Donahue met again with Mr. Diaz.
Mr. Diaz’ account of the meeting was as follows: Mr. Donahue asked Mr. Diaz, “Who wants to
start the
Again Mr.
Donahue asked, “Who wants to start the
At some point during Mr. Donahue’s questioning
about employee problems, Mr. Diaz said, “I don’t feel comfortable telling you
anymore names.” Mr. Donahue said,
“Okay. That’s fine. Well, who are these drivers that want to
start the
Mr. Donahue said, “Well, these guys are already fired.”[15] Mr. Diaz said, “Well, those are the names that I could give you.” Mr. Donahue told Mr. Diaz to wait outside in the parking lot. After a while, Mr. Donahue came to Mr. Diaz and told him, “This conversation is over.” The conversation had lasted about two hours.
Mr.
Donahue’s account of his February 11 meeting with Mr. Diaz was significantly
different from Mr. Diaz’. According to
Mr. Donahue, he asked Mr. Diaz if he had any additional information about the
incident with Mr. Molina and if he knew anything about the incident with Mr.
Obray’s tire. Mr. Diaz said he knew
nothing. Mr. Diaz voluntarily said he
had heard that drivers were talking about the
I found Mr. Diaz’s testimony to be clear, detailed, and trustworthy. In contrast, Mr. Donahue’s testimony was somewhat vague and initially nonresponsive.[16] Accordingly, I accept Mr. Diaz’ account of his February 11 meeting with Mr. Donahue.
- Expanded Criminal Background Checks
During the course of Mr. Donahue’s investigation, Mr. Fitzsimmons initially ordered expanded criminal background checks to be run on five drivers, including Mr. Diaz and Mr. Gonzalez. No evidence was adduced as to the identities of the other three drivers or why they were selected. The expanded checks revealed that three of the five drivers had criminal convictions previously unnoted on their applications, i.e. false applications. Two of the three were Mr. Diaz and Mr. Gonzalez, both of whom, as detailed below, were terminated for false applications. No evidence was adduced as to the nature of the third driver’s unnoted conviction(s) or the consequences to that driver of the false application.
After the initial expanded criminal background checks revealed three false applications, Mr. Fitzsimmons ordered expanded background checks for every driver at the Swift yard. Following these expanded checks, additional drivers were terminated. Mr. Fitzsimmons could not recall how many additional drivers were terminated, but he thought “maybe” five. No evidence exists of the names of the five drivers, the nature of their unnoted convictions, or the circumstances of their terminations. No evidence exists as to how many false applications overall were found, and no evidence exists as to whether false applications were discovered that did not result in terminations.
- The Respondent’s
Communications to Employees about the
1. Mr. Obray’s Alleged Statements to Office Employees
Ligia
Navarro (Ms. Navarro), who worked at the time as a customer representative for
the Respondent and whom the Respondent terminated in March testified as a
witness for the General Counsel.[17] Ms. Nevarro said that in January Mr. Obray
told the office staff that if drivers asked them about unionization, the staff
was to tell them that the Union was not the best thing for them, that the Union
wasn’t going to do anything for them, and that Mr. Moyes knew what was going
on. Mr. Obray said the company was going
to get rid of Mr. Sanchez, Mr. Lopez, Mr. Navarro, Mr. Diaz, and Mr.
Cabreras because they were the ones talking to the drivers about the
credit Ms. Navarro’s testimony. She did not impress me as a sincere or candid witness, and her testimony of Mr. Obray’s repetitive statements about Mr. Sanchez is so hyperbolic as to undermine her reliability.
2. The February 12 Meeting at the Swift Yard
On February 12, Mr. Obray and Mr. Fitzsimmons informed Mr. Moyes that security problems existed at the Swift yard, including tire slashing, feces thrown on or in employee cars, and threats to Mr. Obray. Disturbed by the reports, Mr. Moyes held a meeting at the Swift yard on February 12 that was attended by about 40-60 drivers, Mr. Obray, and Mr. Donahue. Mr. Moyes addressed the group, and Mr. Obray responded to some employee questions.[18]
Mr. Moyes told
the drivers he had heard that tires had been slashed at the company, that he had
never before had such a situation, that he would not tolerate violence or
threats at the terminal, and that if there were any more vandalism, he would
shut the facility down for safety.[19] Mr. Moyes said the company was in a bad place
because of the recession, and the
Mr. Diaz, Mr. Gonzalez, and Ms.
Navarro testified of unlawful threats and coercive statements Mr. Moyes allegedly
made at the meeting. Mr. Diaz testified
that Mr. Moyes told the drivers the Union had never been in Swift and would
never be, saying, “That stops now or I move this facility to
I found Mr. Diaz and Mr. Gonzalez generally to be credible and careful witnesses, and it is clear from their credible testimony of the meeting that Mr. Moyes spoke of shutting down the facility if vandalism continued, and he also spoke of unionization. Whether Mr. Moyes also threatened to close the facility if unionization occurred is a more difficult question. Mr. Diaz and Mr. Gonzalez’ recollections of what Mr. Moyes said were fragmentary. Both Mr. Diaz and Mr. Gonzalez failed to place Mr. Moyes’ statements about unionization in a clear and specific context that would enable me to determine that Mr. Moyes actually threatened facility closure upon unionization or whether Mr. Diaz and Mr. Gonzalez unwarrantedly inferred that from Mr. Moyes’ lawful threat to close the facility if vandalism continued.[21] As noted earlier, I found Mr. Obray’s account of what was said to be relatively comprehensive, clear, detailed, and credible, and I give it weight. I do not credit Ms. Navarro’s account. Not only was I unimpressed with her manner and demeanor, her version of the meeting is, in large part, significantly different from other employee testimony, and I cannot accept it.
At some point during the meeting, Mr. Obray spoke up, saying, “Look guys, we don’t want to close this thing down…we’re here to make it work. But we have some people out there that are causing violence; they’re sabotaging containers that are making us lose customers. And if we can get rid of these bad apples, we would have a pretty good fleet over here.”
Although
Mr. Donahue attended the meeting, he paid little attention to what was said, as
he watched the audience. Mr. Donahue
observed that Mr. Gonzalez, who was standing next to Mr. Diaz, rolled his eyes
and said, “Yeah, right,” in a loud, sarcastic voice in response to one of Mr.
Moyes’ comments. Mr. Donahue thought Mr.
Gonzalez’ comment was “odd, indignant, rude.” Shortly after the meeting and prior to
February 24, Mr. Driscoll told Mr. Fitzsimmons that an unidentified employee had
been rude to Mr. Moyes when he met with the
3. Mr. Moyes’ February Teleconference
About a
week later Mr. Moyes telephoned Mr. Obray to ask how things had gone since his
February 12 meeting. When Mr. Obray told
him there were rumors of a driver walkout, Mr. Moyes asked him to round up
ten drivers whom he could address telephonically, which Mr. Obray did. Approximately ten drivers gathered in the
office, including Mr. Lopez, Mr. Gonzalez, and Melvin English (Mr. English). According to Mr. English before the
conference call, Mr. Obray told the assembled drivers that even if the
When Mr.
Moyes talked to the group by speakerphone, he told the assembled drivers that
he had heard rumors of a walkout in
Mr. Gonzalez spoke up during the phone conference, but witnesses disagree about what he said. According to Mr. Gonzalez, he asked why, if the company was so opposed to a union, didn’t the company offer competitive wages and union packages. Mr. Moyes asked his name, which Mr. Gonzalez gave. Mr. Moyes answered that neither the money nor the freight was there right then.[25] According to Mr. English, Mr. Gonzalez asked if Mr. Moyes would give the drivers a $2.00 per hour raise, but he did not recall what Mr. Moyes said.[26] Mr. Lopez said that one of the drivers, whom he did not identify, asked if the company would pay union wages if employees went union. At some point in the conference, Mr. Obray said that the company had a good fleet and good drivers, but there were a few bad apples, and they needed to push the bad guys out.[27]
Having considered the manner and
demeanor of each witness, I accept the accounts of the General Counsel’s
witnesses, particularly those of Mr. English and Mr. Gonzalez whose testimonies
I found to be clear, candid, and reliable. I find, therefore, that at Mr. Moyes’
February teleconference, the subject of employees’ interest in unionization was
broached, that Mr. Gonzalez asked a question about union benefits, and that Mr.
Obray said the company needed to push the bad apple drivers out. I further find that either before or after
the teleconference, Mr. Obray told the drivers that if the Union came in, Mr.
Moyes would close the
4. Mr. Obray’s Post-Teleconference Statements to Mr. Lopez
A day or two after Mr. Moyes’ teleconference with employees, Mr. Obray told Mr. Lopez that the “union thing” was not going to happen because Mr. Moyes would never be union, the company had never been union, and unionization would not be good for the company. Mr. Obray said there were a couple of bad apples in the company, but the company was going to fix that, adding, “Because you are a good driver, I don’t want to see you getting fired…We want to keep you, but rather than be union…we will close the terminal down and move to Phoenix, and it won’t be union.”[28]
F. Discharges of Anthony Herron, Bismark
Sanchez,
Marco Diaz, and Salvador Gonzalez
1. Anthony Herron
According to DM Tejeira in November or December 2008, he counseled Mr. Herron about “abandoning” loads, i.e., delivering loads to the yard and leaving them without reporting it to a driver manager. DM Tejeira also asked Mr. Herron why he was leaving work early. Mr. Herron replied that he only worked eight hours a day.[29] DM Tejeira told Mr. Herron that Respondent was a trucking company, not an eight-hour facility. Mr. Herron repeated that he only worked eight hours. A week or so later, DM Tejeira again told Mr. Herron that he needed to be available for more hours. Again Mr. Herron said that he only worked eight hours a day; that was all the work he needed. Thereafter, Mr. Herron continued to go home early.
In late January or in early February, DM Tejeira told Mr. Obray that Mr. Herron was leaving before his shift ended (that is, when he still had dispatches to fulfill and/or the driver manager had not told him he could leave for the day). DM Tejeira told Mr. Obray that he had spoken to Mr. Herron about the problem and that Mr. Herron had said he would not work past eight hours. Not long thereafter on an afternoon, DM Tejeira reported to Mr. Obray that Mr. Herron had just abandoned a load and said he was done for the day. Mr. Obray followed Mr. Herron as he walked out of the Swift yard and asked him where he was going. Mr. Herron said he was going home for the day. Mr. Obray told him that his work was not yet done and that he needed to return to the yard. Mr. Herron said his eight hours were up for day, and he was going home. Mr. Obray told him he didn’t work eight hours, he worked until the job was done or his [DOT] hours of service expired. Mr. Obray told Mr. Herron that employee morale was low and the drivers were influenced by whatever Mr. Herron did. Mr. Herron replied that if going home when he was supposed to was doing something wrong, then the drivers were doing what they should do because they were there to work eight hours a day. Mr. Herron said, “I have completed my day. If you don’t know or believe me, I am going to go home.” Mr. Obray told him, “If you leave, I promise you, you’ll be terminated.” Mr. Herron said, “Sorry,” and left.
After Mr.
Herron left, Mr. Obray called Michelle Grey (Ms. Grey) who worked in the
Respondent’s Human Resources in
On February
5, Mr. Herron, who was qualified to haul hazardous materials, was assigned to
pick up a container of hazardous material on a chassis from one of the ports
and deliver it to the
On the morning of February 6, DM Tejeira received notice that the rail yard had rejected Mr. Herron’s February 5 hazmat load the previous evening because its hazmat placards were flawed.[32] When Mr. Herron reported to the yard the morning of February 6, DM Tejeira showed him the notice from the rail yard and told him to fix the placard problems. Mr. Herron took the container to the Swift roadability, where, according to Mr. Herron, a maintenance employee agreed to fix the placards. According to DM Tejeira, Mr. Herron reported that the Swift roadability would not clean (i.e., scrape off) the old placards, and DM Tejeira told him, “They don’t fix the placards. That is your job.” Mr. Herron refused to clean the placards, saying it wasn’t his job. DM Tejeira repeated that it was his job and that he needed to get it done. Mr. Herron did not comply, and DM Tejeira informed Mr. Obray of the situation.[33]
Mr. Obray called Ms. Grey in Human Resources and said that Mr. Herron had been insubordinate again and had failed to follow instructions, and that Mr. Obray would like to terminate him to which Ms. Grey agreed. Later that day, Mr. Obray called Mr. Herron, DM Tejeira and DM Raudales into his office. Mr. Obray told Mr. Herron he was going to terminate him and handed him a Performance Counseling Report that read in pertinent part:
Reason For Counseling
Failure to follow instructions/insubordination.—Anthony was instructed to take his load to the rail, he brought it to the yard and then went home instead. The load Anthony brought to the yard was refused at the rail due to placards being too low. This is a large expense to Swift; it is the driver’s responsibility to properly check the container before pulling out of the port. This driver was given a verbal warning on leaving early by his DM Jesus and myself.
Corrective Action To Be Taken
Driver to be terminated.
According to Mr. Herron, he protested that he had no authority over the placement of placards and no knowledge of the rail yard procedures. Mr. Obray said that Mr. Herron had also
left work early the day before, which Mr. Herron denied.[34] Mr. Herron said he told Mr. Obray he
thought he was being terminated because of his activities
and affiliation with the
2. Bismark Sanchez
On Monday, February 9, when Mr. Donahue returned to the Wilmington Yard to continue his investigation into tire-slashing and the Molina/Lopez incident, he spoke with Mr. Sanchez in an office there. Mr. Donahue explained that he was looking into the vandalism of Mr. Obray’s tire and was reviewing security camera footage. Mr. Sanchez demanded to see the tapes, and Mr. Donahue said, “Not at this point.” According to Mr. Donahue, Mr. Sanchez argued about the questions Mr. Donahue asked, saying, inter alia, “Bulls___” and “I’m not giving you sh__.” Mr. Donahue asked Mr. Sanchez to step out of the office to cool down. While Mr. Sanchez was out of the office, Mr. Donahue telephoned Mr. Driscoll and told him how the interview was going. Mr. Driscoll suggested that Mr. Donahue just ask Mr. Sanchez to write a statement. Mr. Donahue asked Mr. Sanchez to come back into the office and asked him to give a written statement, giving him a blank sheet of paper. Mr. Sanchez refused, saying, “I’m not giving you sh__.” Mr. Donahue again asked Mr. Sanchez to step out and telephoned Mr. Driscoll. When Mr. Donahue told Mr. Driscoll what had occurred, Mr. Driscoll said to terminate Mr. Sanchez for failing to cooperate with the investigation.
After talking to Mr. Driscoll, Mr. Donahue asked Mr. Obray to come into the office as a witness. Mr. Obray testified that when he entered the office, Mr. Sanchez said, “I’m not f___ing signing anything.” Mr. Donahue said, “Bismark, I’m not asking you to sign anything. I’m asking you to write your side of the story. I just want a statement from you…and then it’s done. It’s part of the investigation.” Mr. Sanchez said he was not putting his name on sh__. Mr. Donahue said, “I’m sorry that I have to tell you that Swift’s going to terminate your employment because you are failing to cooperate with an investigation.” Mr. Sanchez said, “This is f___ing bullsh_” and left the office.
Mr. Sanchez testified that when he met with Mr. Donahue that morning, Mr. Donahue told him that surveillance cameras at the facility showed Mr. Sanchez had slashed Mr. Obray’s tire and that he could call the police to pick him up. Mr. Sanchez said that was impossible because he had not slashed the tire and asked to see the video tape, which request Mr. Donahue refused. Mr. Donahue asked Mr. Sanchez to sign a document that in essence stated that Mr. Sanchez had slashed Mr. Obray’s tire but that he would not be terminated for it. Mr. Sanchez refused to sign it. Mr. Obray joined Mr. Donahue and Mr. Sanchez and told Mr. Sanchez that the Respondent was going to have to terminate him because he would not cooperate by signing the document. For reasons stated earlier, I did not find Mr. Sanchez to be a reliable witness. I accept Mr. Donavan and Mr. Obray’s accounts of the termination meeting.
3. Marco Diaz
In the employment application he submitted to the Respondent on September 29, 2008, Mr. Diaz marked the “no” box for the question “Have you ever been convicted of a criminal offense?” Mr. Diaz had understood the question to refer only to the previous five years. When, in the course of new employee orientation, Mr. Diaz learned the criminal offense period the company was interested in ran from age 18, he changed his answer to “yes” and penned the following explanation: “driving too fast 1989 & soliciting 6/89.”
Because he had amended his application, Mr. Diaz was instructed to meet with Mr. Donahue. Mr. Donahue asked Mr. Diaz why he had changed his answer to the application question concerning past criminal offenses. Mr. Donahue explained his misunderstanding about the time period and told Mr. Donahue that he had had a reckless driving conviction in 1988 or 1989 and a solicitation conviction in 1990-1992. Mr. Donahue told Mr. Diaz, “If I find anything else, then we’re not going to hire you.” According to Mr. Diaz, he then recalled that he had also had a restraining order against him in the past and told Mr. Donahue about it.[35] Mr. Donahue said, “Well, that falls under domestic. Is there anything else?” Mr. Diaz told him no. Mr. Donahue denied that Mr. Diaz mentioned any restraining order or told him of any convictions relating to its violation. [36]
After meeting with Mr. Donahue, Mr. Diaz completed the Respondent’s “Conviction Form” on which he noted (1) that his first arrest was in March 1989 for reckless driving with the additional comment, “driving too fast I was 18 [years old] and (2) that his second arrest was June 1989 for solicitation with the additional comment, “soliciting a prostitute I was 18 [years old].[37]
On February 24, Mr. Diaz was told to report to Mr. Donahue at the facility. When Mr. Diaz did so, he found Mr. Fitzsimmons with Mr. Donahue. Mr. Fitzsimmons asked Mr. Diaz if he remembered what Mr. Donahue had told him in the orientation about what would happen if the company found addition criminal offenses in his background. Mr. Diaz said he remembered, and Mr. Fitzsimmons said, “Well, we found a restraining order.”
Mr. Diaz said he had told Mr. Donahue about the restraining order. Mr. Donahue said nothing but shook his head. Mr. Fitzsimmons explained that the company had found the restraining order and was going to have to let Mr. Diaz go. Mr. Diaz said, “Well, I thought a restraining order fell under a domestic issue.” Mr. Fitzsimmons said, “Well, yeah, but there’s two other violations [of the restraining order].”[38] Mr. Diaz said he had forgotten about the violations. [39] Mr. Fitzsimmons said the company was going to have to let Mr. Diaz go because of them.
4.
Mr. Gonzalez completed his employment application for the Respondent on October 13, 2008.[40] At a concurrent employee orientation meeting, Mr. Donahue informed Mr. Gonzalez and other drivers that applicants were to list in their applications all criminal convictions since age 18. Mr. Gonzalez marked “no” boxes for all questions about criminal convictions. On the same date, Mr. Gonzalez signed an Application Update Acknowledgement that stated, in pertinent part:
I acknowledge that omissions of employers moving violations/suspensions, accidents (preventable & non-preventable) and criminal convictions will constitute falsification of the employment application which will result in immediate termination of employment.
Mr. Gonzalez was one of five employees for whom the Respondent ordered an expedited, expanded background check in early February. The background check was ordered because, according to Mr. Fitzsimmons, Mr. Gonzalez was “one of the subjects of the [Respondent’s] investigation at that time” although no evidence was adduced as to why Mr. Gonzalez was considered a subject.[41]
At the end of his shift on February 24, Mr. Gonzalez was directed to an office at the facility where he met with Mr. Donahue and Mr. Fitzsimmons. Mr. Fitzsimmons told Mr. Gonzalez that the company had received the results of his background investigation and had discovered misdemeanors that Mr. Gonzalez had not listed on his employment application. Mr. Gonzalez said he had not listed them because he was under age 18 at the time he committed the misdemeanors. After checking the dates on some documents before him, Mr. Fitzsimmons said, “No, you were eighteen.”[42]
Mr. Gonzalez said it was an honest mistake, that he had thought he was seventeen at the time. Mr. Gonzalez told Mr. Fitzsimmons that he understood somebody was telling him to get rid of people and that they should not waste their time talking about it; Mr. Gonzalez left the meeting.
V. DISCUSSION
- Legal Principles
Section 7 of the Act provides that employees have the right to
engage in union activities and, in pertinent part, “the right to … engage in …
concerted activities for the purpose of collective bargaining or other mutual
aid or protection ….” The protections afforded by Section 7 extend to employee
efforts to improve terms and conditions of employment or otherwise improve
their lot as employees. Section 8(a)(1)
of the Act provides: “It shall be an unfair labor practice for an employer to
interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed in section 7.” Section
8(a)(3) of the Act provides that it shall be an unfair labor practice for an
employer to discriminate in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage membership in any labor
organization.
To enjoy Section 7 safeguards, employee activity must be both “concerted” and “protected,” which a propounding party may prove by showing the activity (1) involves a work-related complaint or grievance; (2) furthers some group interest; (3) seeks a specific remedy or result; and (4) is not unlawful or otherwise improper. NLRB v. Robertson Industries, 560 F.2d 396, 398 (9th Cir. 1976), cited with approval by the Board in Northeast Beverage Corporation, 349 NLRB 1166 fn. 9 (2007). To be concerted, employee activity must be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself. Meyers Industries, 268 NLRB 493, 497 (1984). Concerted activity includes individual activity that seeks to initiate or to induce or to prepare for group action, as well as individual employees bringing group complaints to the attention of management. Meyers Industries, 281 NLRB 882 (1986). “[C]oncertedness…can be established even though the individual [speaking] was not ‘specifically authorized’…to act as a group spokesperson for group complaints.” Herbert F. Darling, Inc., 287 NLRB 1356, 1360 (1988). Concerted activity includes concerns that are a “logical outgrowth” of group concerns. Salisbury Hotel, 283 NLRB 685, 687 (1987); Compuware Corporation, 320 NLRB 101 (1995).
In
cases turning on employer motivation, whether in an 8(a)(1) or an 8(a)(3)
context, the Board applies an analytical framework that assigns the General Counsel the initial burden of
showing that protected concerted or union activity was a motivating or
substantial factor in an adverse employment action. The elements commonly
required to support such a showing are protected concerted or union activity by
the employee, employer knowledge of that activity, and animus toward the
activity on the part of the employer. If
the General Counsel meets the initial burden, the burden then shifts to the
employer to prove, as an affirmative defense, that it would have taken the same
action even in the absence of the employee's protected activity. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455
U.S. 989 (1982);
In considering the lawfulness of
communications from an employer to employees, the Board applies the “objective
standard of whether the remark tends to interfere with the free exercise of
employee rights. The Board does not consider either the motivation behind the
remark or its actual effect. Miller Electric Pump and Plumbing, 334 NLRB
824 (2001). Communications
from an employer to employees that threaten reprisal for supporting a labor
organization or suggest the futility of choosing union representation interfere
with, restrain, or coerce employees as contemplated by Section 8(a)(1). Empire
State Weeklies, Inc., 354 NLRB No. 91, at slip op. 3 (2009); Regal
Health and Rehab Center, Inc., 354
NLRB No. 51, at slip op. 1 (2009); Grouse
Mountain Lodge, 333 NLRB 1322 fn. 2 (2001); Tres Estrellas de Oro, 329 NLRB 50, 51 (1999). Also
the Board has long found that an employer's threats of plant closure
and job loss in response to unionization efforts naturally tend to coerce
employees in the exercise of their statutorily protected rights. Valerie
Manor, Inc., 351 NLRB 1306, 1321 (2007).
B. Independent Alleged Violations of Section 8(a)(1) of the Act
1. Interrogation
The complaint alleges that in
January Mr. Obray interrogated employees about their union activities. This allegation is based on Mr. Obray’s mid-January
question to a group of drivers. The
drivers were assembled at the Swift yard to select driver representatives for
the Employee Committee, and Mr. Obray asked them whether they were talking
about the
Applying
the Board’s Rossmore test to Mr.
Obray’s mid-January inquiry, I find his question tended to restrain, coerce,
and interfere with the employees’ Section 7 rights. Although Mr. Obray was justified in wanting
to know why the employees were assembled, his question went beyond that legitimate
purpose. At the highest level of
coercive impact, the question could reasonably be viewed
as an attempt to discover employees' protected sympathies and activities; at
the lowest level, it alerted employees that their supervisor had
an undue, if not hostile, interest in their union activities, which is also
coercive. Questions that have a coercive effect on employees protected
activities are unlawful. Atlantic Veal & Lamb, Inc., 342 NLRB 418, 420 (2004).
In these circumstances, I find that Mr.
Obray’s question as to whether the assembled drivers were discussing the
The complaint also alleges that Mr. Donahue interrogated
employees about their protected concerted activities on three separate
occasions: February 6, February 11, and in the week of February 23. In her argument,
Counsel for the General Counsel lumps the first two allegedly unlawful
interrogations together, contending apparently that the second questioning
corrupts the first. I have considered
the two instances of interrogation separately.
On February 6, in the course of his investigation into
vandalism at the Swift yard, Mr. Donahue interviewed Mr.
Diaz about the Molina/Lopez incident. When
Mr. Diaz described his role in the incident, Mr. Donahue asked him why he had
gotten involved in the matter and why Mr. Lopez had taken the issue to him rather
than going to Mr. Molina, asking “Why do you think that you’re a leader or a
spokesperson to all these other drivers?”
Mr. Diaz cited his fluency in Spanish and English and told Mr. Donahue
about the Employee Committee. After
Mr. Diaz, at Mr. Donahue’s request, provided a statement about the
creation of the Employee Committee and about the Molina/Lopez dispute, Mr.
Donahue also asked Mr. Diaz questions about Mr. Sanchez relative to the
slashing of Mr. Obray’s tires. Counsel
for the General Counsel argues that this questioning violated the Act because
it occurred during a period of union organization among employees and because
Mr. Donahue gave no non-reprisal assurances.
Mr. Donahue’s February 6 questioning of Mr. Diaz related
to reports of threats and vandalism at the Swift Yard. Mr. Donahue did not question Mr. Diaz about employee
union or other protected activity during the interview, and no linkage to protected
activity can reasonably be inferred from his questions. Counsel cites no authority for the
proposition that an employer may not question employees about security matters
unrelated to protected activity, and I know of none. I shall, therefore, dismiss this allegation of the complaint.
On February 11, Mr.
Donahue met again with Mr. Diaz in a nearly two-hour interview. Mr. Donahue repeatedly asked Mr. Diaz to
identify employees at the Swift yard who wanted to start a union. Although Mr. Diaz was an active union supporter, his support was not
open to management view, and the circumstances of the interrogation pronounced
it to be an official questioning by the company’s corporate security
investigator, all of which would reasonably be expected to communicate to Mr.
Diaz the potentially serious ramifications of the interrogation. [43] Mr.
Donahue’s February 11 interrogation tended to restrain, coerce or
interfere with Mr. Diaz’ statutory rights.
2. Threat of Termination
The complaint alleges that in late January/early February, Mr. Obray threatened to terminate employees because of their protected concerted and union activities. Counsel for the General Counsel contends that Mr. Obray’s late January/early February warning to Mr. Herron that he needed to return to his uncompleted work or face termination constituted a threat to terminate Mr. Herron if he continued to engage in protected activities.
Since November or December, Mr. Herron had periodically left work after eight hours without authorization. On the occasion in question, Mr. Obray told Mr. Herron he was not to leave work because his dispatches were not completed and threatened him with termination if he did so. Mr. Herron ignored Mr. Obray’s orders and left work anyway. Counsel for the General Counsel essentially argues that Mr. Herron’s refusal was concerted and protected. It is true that Mr. Herron and other employees complained about work schedules. It is also true that their complaints were concerted and protected by Section 7 of the Act. Counsel for the General Counsel appears to argue that because Mr. Herron’s complaints were concerted and protected, his repeated refusals to carry out work assignments beyond an eight-hour work day were also protected. While Mr. Herron’s refusals to work beyond eight hours may have been concerted,[44] in order to enjoy the protections of Section 7, the refusals must also be protected. The Board has observed:
While employees may protest and ultimately seek to
change any term or condition of their employment by striking or engaging in a
work stoppage, the strike or stoppage must be complete, that is, the employees
must withhold all their services from their employer. They cannot pick and
choose the work they will do or when they will do it. Such conduct constitutes
an attempt by the employees to set their own terms and conditions of employment
in defiance of their employer's authority to determine those matters and is
unprotected.
Mr. Herron repeatedly refused to work past eight hours. Refusals to work are unprotected if they are "part of a plan or pattern of intermittent action which is inconsistent with a genuine strike." See Polytech, Inc., 195 NLRB 695, 696 (1972). The fact that an employee may be otherwise engaged in the protected activity of complaining about work schedules does not permit him to sporadically disregard his work assignments no matter how unfair or unreasonable he may think them. Mr. Herron’s refusals to work constituted an attempt to set his own terms and conditions of employment, which is not protected.
Counsel for
the General Counsel also argues that because Mr. Obray referred
to Mr. Herron’s actions as influencing other employees and affecting
employee morale, his threat of termination was directed at Mr. Herron’s
protected activities, i.e., his concerted complaints about hours and wages. It is clear, however, that Mr. Obray’s
reference to morale and influence was directed solely to Mr. Herron’s
unauthorized departure from work and that Mr. Herron understood it as
such. When Mr. Obray mentioned employee
morale and Mr. Herron’s influence on other drivers, Mr. Herron replied that if
going home when he was supposed to was doing something wrong, then the drivers
were doing what they should do. Mr.
Obray did not mention Mr. Herron and other drivers’ complaints about any
employment term; he only addressed Mr. Herron’s action in leaving work without
permission. Since that action was not
protected under the Act, Mr. Obray did not violate Section 8(a)(1) by warning
Mr. Herron about it. I shall,
therefore, dismiss this allegation of the complaint.
The General Counsel contends that when, during the course of the February teleconference among drivers and Mr. Moyes, Mr. Obray told the drivers there were a few bad apples whom the company needed to push out, he impliedly threatened the drivers with termination for engaging in union activities. Mr. Obray’s comment was made during a discussion in which a potential driver walkout and unionization, both protected activities, was discussed. In the context of the meeting, the drivers would likely and reasonably have understood Mr. Obray’s reference to “bad apples” to encompass drivers who supported either a walkout or unionization. Although Mr. Obray claimed that his “bad apple” reference was meant to address only perpetrators of violence and saboteurs, he didn’t communicate that qualification to the drivers. The Board applies an objective standard in assessing employer communications to employees,[45] and Mr. Obray’s statement could reasonably be expected to have a tendency to interfere with the drivers’ free exercise of employee rights. Accordingly I find that Mr. Obray impliedly threatened employees with termination if they engaged in protected activity or supported the Union in violation of Section 8(a)(1) of the Act.
A day or
two after the teleconference, Mr. Obray told Mr. Lopez that the “union thing”
was not going to happen and that the Respondent would close the terminal rather
than accept a union. In that context, Mr.
Obray further told Mr. Lopez that the company was going to “fix” its problem
with bad-apple drivers, adding that he did not want to see Mr. Lopez fired. Mr. Obray’s juxtaposition of intransigent opposition to the Union
with concern about Mr. Lopez’ continued employment impliedly threatened
Mr. Lopez with termination if employees continued to support the
The
complaint alleges that at the February 12 meeting, Mr. Moyes threatened to
terminate and replace employees who continued to support the
3.
Threat of Plant Closure, Warning of
Futility of Union Support,
and Impression
of Surveillance
Credible evidence
establishes that in mid-February either before or after Mr. Moyes’
teleconference with about ten drivers, Mr. Obray told the
assembled drivers that if the
The General
Counsel asserts that at the February 12 meeting with drivers, Mr. Moyes created
the impression that employees’ union activities were under surveillance by saying
he was aware of driver interest in unionization and again during his
teleconference by saying he was aware drivers were talking about unionization
and about a walkout. Mere knowledge of
employees' union activity is not sufficient to establish that an employer
created the impression of surveillance. To establish a violation, it must also
be shown that this knowledge could only have come from surveillance. Communicating awareness of union-activity
or employee-walkout rumors does not, without more, create
the impression that employees’ union
activity has been under surveillance.
The General
Counsel also argues that at the February 12 meeting with drivers and during the
teleconference a week later, Mr. Moyes made unlawful statements to employees:
(1) indicating their support for the union would be futile, and (2)
threatening to shut down the
When, following the teleconference, Mr. Obray told Mr. Lopez that the “union thing” was not going to happen because Mr. Moyes would never be union and that rather than be union, the Respondent would close the terminal, he unlawfully threatened closure of the Wilmington yard and warned that union support would be futile. Accordingly, I find that Mr. Obray, on a second occasion, threatened employees with plant closure and the futility of supporting the Union in violation of Section 8(a)(1) of the Act.
C. Discharges of Anthony Herron, Bismark
Sanchez,
Marco Diaz, and Salvador Gonzalez
1. Anthony Herron
The General Counsel has met his Wright Line burden as to the discharge of Mr. Herron, having proven that Mr. Herron engaged in protected concerted activity, that the Respondent knew of Mr. Herron’s activity, and that the Respondent bore animus toward it. No evidence exists that the Respondent knew Mr. Herron was a union supporter. However Mr. Obray knew Mr. Herron was a member of the Employee Committee and that he took a leadership role in championing employees in their disputes with management, all of which was concerted and protected. Having instituted the Employee Committee, Mr. Obray bore no apparent animosity toward Mr. Herron’s committee activities until February 5. On that date, Mr. Herron prominently and unrelentingly pursued Mr. Sanchez’s grievance against Mr. Obray regarding a driving assignment. In so doing, Mr. Herron invited Mr. Obray to join a group of angrily vocal drivers.[47] Mr. Obray demonstrated his animus toward Mr. Herron’s method of supporting Mr. Sanchez by his reaction to the driver meeting. Shocked at the number of drivers assembled with Mr. Herron, Mr. Obray accused the group of ambushing him and told them that his being yelled at and Mr. Herron’s arguing did not help them.[48]
The General Counsel having met the initial Wright Line burden, the burden shifts to the Respondent to establish persuasively by a preponderance of the evidence[49] that it would have discharged Mr. Harron even in the absence of his protected activities.
The Respondent argues that it would have discharged Mr. Herron on February 6 irrespective of his concerted protected activities because he repeatedly refused to work more than eight hours a day. The credible evidence establishes that from about December 2008 until his discharge on February 6, Mr. Herron regularly refused to work longer than eight hours in spite of being told by DM Tejeira that his conduct was unacceptable. Indeed Mr. Herron agreed that he almost always refused to work past 3:30 to show his disagreement with the Respondent’s requirement that employees work beyond eight hours in a day if necessary.[50] On one occasion in late January/early February, Mr. Obray told Mr. Herron that he work was not yet done and that he needed to return to work. When Mr. Herron refused, saying his eight hours were up and he was leaving, Mr. Obray warned him to no avail that he would be terminated if he left. On February 5, Mr. Herron left a load of hazardous material with improper placards at the Swift yard and left work without clearance. On February 6, Mr. Herron refused DM Tejeira’s assignment to fix the improper placards on his load of the previous day. Later that day, Mr. Obray terminated Mr. Herron for insubordination.
The evidence is clear that Mr. Herron was insubordinate in defying orders to complete scheduled work in January and February in spite of warnings and insubordinate in refusing to repair damaged placards on February 6. There is no question that Mr. Herron’s insubordination could reasonably provide legitimate grounds for discharge. However, “[a]n employer cannot simply present a legitimate reason for its action but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected activity.” Yellow Ambulance Service, 342 NLRB 804, 804 (2004), citations omitted. The Respondent has adduced evidence that DM Tejeira notified Mr. Herron of the Respondent’s objection to his leaving work early even before Mr. Herron became a force on the Employee Committee and that Mr. Obray warned him in late January/early February that flouting the company’s work schedule would result in termination. No evidence shows that the Respondent has tolerated insubordination similar to Mr. Herron’s in the past or that termination in such situations was an extreme disciplinary measure. In these circumstances, it is reasonable to conclude that the Respondent has shown by a preponderance of the evidence that it would have fired Mr. Herron for his insubordination regardless of the Respondent's animosity toward his protected activity. Accordingly, I find the Respondent has met its shifted burden under Wright Line, and I will dismiss the complaint allegation relating to Mr. Herron’s discharge.
- Bismark Sanchez
The General Counsel has met his Wright Line burden as to the discharge
of Mr. Sanchez, having proved that Mr. Sanchez engaged in protected
concerted activity, that the Respondent knew of Mr. Sanchez’ activity, and that
the Respondent bore animus toward it.
While no specific evidence exists that the Respondent knew Mr. Sanchez
was a union supporter, Mr. Obray, and through him other management officials,
knew Mr. Sanchez had presented a grievance to the Employee Committee on
February 5 concerning a load assignment and had vociferously pursued it, all of
which was concerted and protected.[51] Mr. Obray’s animus toward Mr. Sanchez’
conduct on that occasion is demonstrated by his belief that he had been
“ambushed” and threatened, particularly by Mr. Sanchez, in the grievance
meeting with drivers and by his consequent naming of Mr. Sanchez as a suspect
in the tire-slashing.
The General Counsel having met the initial Wright Line burden, the burden shifts to the Respondent to establish persuasively by a preponderance of the evidence that it would have discharged Mr. Sanchez even in the absence of his protected activities. The Respondent argues that it would have discharged Mr. Sanchez on February 6 irrespective of his concerted protected activities because he refused to cooperate in the Respondent’s investigation in vandalism and misconduct at the Swift yard.
There is no dispute that sometime on February 5, an unknown vandal cut Mr. Obray’s car tire while the car was parked in the Swift yard. Thereafter, Mr. Donahue began an investigation into that and other reports of threats and vandalism. There is no evidence the investigation was other than a reasonable reaction to reports of security problems at the Swift yard, and there is no credible evidence Mr. Sanchez was discriminatorily targeted in the investigation or that the questions posed to him impinged upon his protected rights. Mr. Sanchez contumaciously refused to answer Mr. Donahue’s questions or to give the investigator a written statement. Written company policy required employees to cooperate in security investigations upon pain of termination. Mr. Driscoll, to whom Mr. Donahue consulted about Mr. Sanchez’ obduracy, judged that Mr. Sanchez was refusing to cooperate in the company’s investigation and directed that he be terminated.
Clearly Mr. Sanchez’ refusal to cooperate in the investigation provided a reasonable basis for termination under the Respondent’s policies. However, the question is not whether the Respondent had a legitimate reason for discharging Mr. Sanchez but whether the Respondent would have implemented the discharge in the absence of Mr. Sanchez’ protected activity. SeeYellow Ambulance Service, supra.
The Respondent had a written policy identifying noncooperation in investigations as a terminable offense, and no evidence was adduced to show the Respondent had previously tolerated investigatory noncooperation or that Mr. Sanchez was disparately treated. Given Mr. Sanchez’ obdurate, vehement, and profanity-laced refusals to cooperate in the Respondent’s legitimate investigation, it is reasonable to conclude that the Respondent would have fired Mr. Sanchez for his refusals regardless of the Respondent’s animosity toward his
protected activity. Accordingly, I find the Respondent has met its shifted burden under Wright Line, and I will dismiss the complaint allegation relating to Mr. Sanchez’ discharge.
3.
Marco
Diaz
The General Counsel has met his Wright Line burden as to the discharge
of Mr. Diaz. Mr. Diaz, like Mr. Herron,
was a visible member of the Employee Committee and an employee spokesman to
management. Services to employees that Mr.
Diaz provided in either position were concerted and protected. Mr. Diaz was also a staunch union supporter,
and it is reasonable to infer from Mr. Donahue’s two-hour, February 11 interrogation
of Mr. Diaz that the Respondent knew or at least strongly suspected what Mr.
Diaz’ union sentiments were. Mr. Donahue’s
lengthy interrogation consisted almost exclusively of repeated demands that
Mr. Diaz identify the union supporters among the Respondent’s drivers. When Mr. Diaz refused to name anyone but two
drivers who had already been fired, his resistance must have signaled alliance
with union supporters. Moreover, Mr.
Diaz’ refusal to name union supporters was in itself a form of union activity
to which Mr. Donahue clearly exhibited animosity when he badgered Mr. Diaz to identify
them. Additionally, both before and
after Mr. Donahue’s interrogation of Mr. Diaz, the Respondent demonstrated its
animosity toward its employees’ nonunion protected activity and their union
activity by its unfair labor practices, as earlier detailed.
The General Counsel having proved the requisite Wright Line elements: concerted protected and union activities by Mr. Diaz, employer knowledge of his activities, and employer animus toward the activities, the General Counsel has met his initial burden. Under Wright Line, the burden of proof shifts to the Respondent to establish persuasively that it would have discharged Mr. Diaz even in the absence of his protected activities.
The Respondent argues that it would have discharged Mr. Diaz on February 24 irrespective of his concerted protected activities because he had provided a false application in obtaining employment. In his September 2008 application for employment, Mr. Diaz acknowledged prior convictions in 1989 for “driving too fast” and for “soliciting.” At a new employee orientation, Mr. Diaz also told Mr. Donahue of a past restraining order, to which Mr. Donahue professed indifference. After conducting an expanded criminal background check of Mr. Diaz, the Respondent discovered that Mr. Diaz had twice violated the restraining order, for which a court had sentenced him to two and three year suspensions, respectively. To the extent he had failed to detail the court-imposed suspensions, Mr. Diaz had, in fact, submitted a false application to the Respondent and such was, ostensibly, a terminable offense.
It is not sufficient for the Respondent simply to show it had a legitimate reason for discharging Mr. Diaz; the Respondent must prove that it would have implemented the discharge even in the absence of Mr. Diaz’ protected activity. SeeYellow Ambulance Service, supra. The Respondent has not met its burden. There is no evidence the Respondent had a zero tolerance policy for false applications. Rather, the evidence shows that the Respondent’s post-employment discovery of a false application resulted not in immediate termination but in an investigation that included an interview with the employee, the purpose of which was to determine, by obtaining more information about the omitted conviction(s), if the offending employee should be retained. Although there is no evidence as to what criteria the Respondent used in deciding whether or not to retain such an employee, there is no question that retention was a viable option.
Mr. Fitzsimmons and Mr. Donahue met with Mr. Diaz after learning that he had submitted a false application, but the brevity of the meeting, the cursory interchange regarding Mr. Diaz’ application omissions, and the inaccuracy of Mr. Donahue’s denial that Mr. Diaz had told him of the restraining order, show the meeting was not for investigatory or evaluative purposes but merely to inform Mr. Diaz that he was fired. There is no evidence Mr. Fitzsimmons or any other manager evaluated the nature of Mr. Diaz’ omitted convictions[52] or Mr. Diaz’ proffered explanations; certainly there is no evidence of any managerial discussion of the circumstances surrounding the false application.
It is reasonable to infer from these facts that the Respondent’s motive in firing Mr. Diaz was something other than Mr. Diaz’ false application. The General Counsel has proved the Respondent bore animus toward Mr. Diaz’ protected activities. That proof, coupled with the Respondent’s failure to follow its evaluative policy regarding false applications, warrants an inference that animus prompted Mr. Diaz’ discharge. The Respondent might have rebutted such an inference by showing that Mr. Diaz was treated the same as other false applicants, but the Respondent failed to do so. Evidence shows the Respondent unearthed as many as eight false applications in its expanded security checks, but the total number found and the disciplinary consequences attached to them are unknown. Specifically, during the initial expanded background check, a third driver in addition to Mr. Diaz and Mr. Gonzalez was identified as having made a false application, but there is no evidence as to the nature of the third driver’s conviction(s) or whether he was disciplined.
In arguing that it lawfully terminated Mr. Diaz, the Respondent’s reliance on Overnite Transportation, Inc., 343 NLRB 1431 (2004) is misplaced. In Overnight, the employer had a zero tolerance policy for failure to disclose criminal records on employment applications, which policy the employer applied in an even-handed manner. That is not the situation here; the Respondent had no zero-tolerance policy, and there is no evidence the Respondent even-handedly discharged Mr. Diaz. The Respondent also argues that the General Counsel has not proved that its stated reasons for discharging Mr. Diaz were pretextual or that it disparately treated Mr. Diaz. Under Wright Line, the General Counsel does not have to prove either factor; the General Counsel meets his burden by proving the Wright Line elements, which the General Counsel did. Once the burden of proof shifted to the Respondent, it was the Respondent’s burden to rebut the General Counsel’s prima facie case by showing that it had imposed on Mr. Diaz justifiable disciplinary treatment reasonably equal to that afforded other similarly situated employees. The Respondent failed to make such a showing. The Respondent correctly points out that no evidence exists as to false-application/discharge comparators, but, given the relative burdens of proof, the absence of such evidence works to the Respondent’s disadvantage not to the General Counsel’s.
Inasmuch as the Respondent has not met its shifted burden to show that it would have fired Mr. Diaz notwithstanding his protected activity, I find that the Respondent fired Mr. Diaz in violation of Sections 8(a)(3) and (1) of the Act.
4.
The General Counsel has met his Wright Line burden as to the discharge of Mr. Gonzalez. Although Mr. Gonzalez was not a member of the Employee Committee, he had drawn attention to himself in the course of both Mr. Moyes’ February 12 meeting and the teleconference. At the former meeting, Mr. Gonzalez audibly and visibly communicated his disagreement with Mr. Moyes’ remarks to employees about the work situation, and at the latter meeting, Mr. Gonzalez asked why the company did not offer competitive wages and union packages to its employees. In those respective instances, Mr. Gonzalez engaged in open protected concerted activity and in union activity. Mr. Gonzalez’ sarcastic “Yeah, right” remark was a comment on Mr. Moyes’ explanation of the Respondent’s stance on work issues that concerned employees generally and that had been the subject of employee complaints. [53] While the Respondent considered Mr. Gonzalez’ remark and accompanying body language to be rude, his remark does not come close to meeting the stringent standard of “egregious conduct” that loses the Act's protection.[54] Far more serious discourtesies have been held insufficient to lose the Act's protection.[55] Consequently, Mr. Gonzalez’ comment in the February 12 employee meeting was concerted and protected. As for Mr. Gonzalez’ question about union benefits during the teleconference, such is clearly protected union activity.[56]
The Respondent’s specific animus
toward Mr. Gonzalez’ February 12 protected activity is evidenced by Mr.
Donahue’s characterization of Mr. Gonzalez’ conduct as rude and his widely
disseminated report of the asserted rudeness to security management. The
Respondent’s general animus toward its employees’ nonunion protected activity
and their union activity has already been detailed.
The General Counsel having proved the requisite Wright Line elements: protected concerted and union activity by Mr. Gonzalez, employer knowledge of it, and employer animus toward the activity, the General Counsel has met his initial burden. Under Wright Line, the burden of proof shifts to the Respondent to establish persuasively that it would have discharged Mr. Gonzalez even in the absence of his protected activities.
The Respondent argues that it would have discharged Mr. Gonzalez on February 24 irrespective of his concerted protected activities because he had provided a false application in obtaining employment. In his October 2008 application for employment, Mr. Gonzalez omitted to include misdemeanor convictions that he had committed more than 12 years earlier: receiving and concealing stolen property, carrying a loaded firearm in a public place, and challenging to a fight in a public place. To the extent he had failed to detail the convictions, Mr. Gonzalez had submitted a false application to the Respondent, which was a potentially terminable offense.
It is not sufficient for the
Respondent simply to show it had a legitimate reason for discharging Mr. Gonzalez;
the Respondent must prove that it would have implemented the discharge even in
the absence of Mr. Gonzalez’ protected activity. See Yellow
Ambulance Service, supra.
The Respondent has not met its burden.
The analysis applied to Mr. Diaz’ discharge is appropriate here. In discharging Mr. Gonzalez, the Respondent
did not follow its stated policy of interviewing false applicants in order to
assess the circumstances underlying the false applications. Rather, Mr. Fitzsimmons briefly informed Mr.
Gonzalez of what its expanded background check had shown, discounted his
proffered explanation without deliberation or discussion, and did not respond
when Mr. Gonzalez said he knew Mr. Fitzsimmons had been instructed to get rid
of people. Mr. Gonzalez’ omitted
convictions, related as they were to theft and aggressive behavior, fit
within the categories of convictions that normally disqualify from
employment the Respondent’s applicants or employees. However, there is no evidence the Respondent even
considered the fact that 12 years had passed since Mr. Gonzalez’ convictions or
that the crimes on which they were based were committed when Mr. Gonzalez was
very young. Indeed, there is no evidence
the Respondent weighed any of the circumstances underlying the false application
before it terminated Mr. Gonzalez’ employment.
There is no question that the Respondent could reasonably view a
false application as a terminable offense, and it is not the role of the
administrative law judge to second guess the degree of discipline an employer
chooses to impose on a rule transgressor.
However, the Respondent bears the burden of
rebutting the General Counsel’s prima facie case that Mr. Gonzalez was
fired because of his protected activities by showing that Mr. Gonzalez would
have been discharged for making a false application notwithstanding those
activities. The Respondent’s apparent failure
in Mr. Gonzalez’ case to follow its policy of evaluating and considering the
circumstances surrounding false applications, its failure to explain why
Mr. Gonzalez’ false application merited discharge, and its failure to show
that it afforded Mr. Gonzalez reasonably equal disciplinary treatment
to other similarly situated employees vitiates the Respondent’s contention that
it would have fired Mr. Gonzalez irrespective of his protected activities. [57]
Inasmuch as the Respondent has not met its shifted burden to show that it would have fired Mr. Gonzalez notwithstanding his protected activity, I find that the Respondent terminated Mr. Gonzalez in violation of Sections 8(a)(3) and (1) of the Act.
VI.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act.
2.
The
3. The Respondent violated Section 8(a)(1) of the Act by interrogating employees about their protected concerted and/or union activities, by impliedly threatening employees with termination if they engaged in protected activity or supported the Union, by threatening employees with plant closure, and by informing employees of the futility of supporting the Union.
4.
The Respondent violated Section 8(a)(3)
and (1) of the Act by discharging Marco
Diaz and Salvador Gonzalez because they engaged in union or other concerted,
protected activities.
5. The unfair labor practices set forth above affect commerce within the meaning of Sections 8(a)(3) and (1) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
The
Respondent having unlawfully discharged Marco Diaz and Salvador Gonzalez, it
must offer them reinstatement and make them whole for any loss of earnings and
other benefits. Backpay shall be computed on a quarterly basis from the dates
of their discharge to the date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent will be ordered to make
appropriate emendations to Marco Diaz and Salvador Gonzalez’ personnel files. The Respondent will be ordered to post an
appropriate notice.
The
General Counsel’s request that the Respondent be required to read the notice to
employees is denied. The Respondent’s
violations, while serious, can be adequately remedied by the Order herein.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended[58]
ORDER
Respondent, Swift Transportation Co., Inc., its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their protected
concerted and/or union activities, threatening employees with termination
for engaging in protected activity or supporting the Union, threatening
employees with plant closure, and informing employees of the futility of
supporting the
(b) Discharging any employee for engaging in
union or other protected concerted activities.
(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a)
Within 14 days from the date of this Order, offer Marco Diaz and Salvador Gonzalez full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(b)
Make Marco Diaz and Salvador
Gonzalez whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them, in the manner
set forth in the remedy section of the decision.
(c) Within 14 days from the date of this
Order, remove from its files any reference to the unlawful discharges of Marco Diaz and Salvador Gonzalez and within 3 days thereafter notify them in writing that
this has been done and that the discharges will not be used against them in any
way.
(d) Preserve and, within 14 days of a
request, or such additional time as the Regional Director may allow for good
cause shown, provide at a reasonable place designated by the Board or its
agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including an electronic
copy of such records if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(e)
Within 14 days after service by the Region, post at its
facility in
(f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.
Dated:
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Lana H. Parke Administrative Law Judge |
