NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Tower Industries, Inc. d/b/a Allied Mechanical and United Steelworkers of
May 31, 2007
DECISION AND ORDER
By Chairman Battista and Members Schaumber
and Walsh
On July 15, 2004, Administrative Law Judge Mary Miller Cracraft issued the attached decision. The General Counsel and the Respondent each filed exceptions, supporting briefs, and answering briefs. The Charging Party filed an answering brief to the Respondent’s exceptions, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions as modified and to adopt the recommended Order as modified.2
i.
introduction
This case primarily involves the Respondent’s treatment of
Marcelo Pinheiro, a machinist at its
ii. background—allied mechanical i
The Respondent manufactures prototype parts for the
aerospace and defense industries. It
hired Pinheiro in April 2002 for a night-shift machinist position. In January 2003,4
the
On January 31, Pinheiro told Sedano and Supervisor Eddie Rogers
that he planned to file charges with the Board over the selective removal of
union fliers that Pinheiro had posted in areas where employees customarily displayed
nonwork-related notices.5 Several hours later, the Respondent gave
Pinheiro a written disciplinary warning, allegedly for an error machining a
part on January 28. On March 25, the
Respondent issued Pinheiro a second warning. After
charges were filed and a complaint issued, the Board ultimately found that the Respondent violated Section 8(a)(1)
by discriminatorily enforcing its posting policy6 and violated Section 8(a)(3)
and (1) by issuing Pinheiro the two warnings.
Allied Mechanical, Inc., 343 NLRB 631 (2004) (Allied Mechanical
I).7
iii. summary
of the present case
The Respondent laid off Pinheiro on April 8, and recalled him on July 23 to a day-shift “floater” position, i.e., an employee who is not assigned to a specific machine but instead works on different machines as needed when other employees are out or when “hot jobs” come up. The Respondent told Pinheiro that the reason for the recall was to “keep [Respondent] out of trouble” with the Board.
Following his recall, Pinheiro requested a transfer to the night-shift position he held prior to the layoff, operating the Respondent’s 5-Axis machine. The Respondent denied his request, alleging problems in Pinheiro’s work quality, and filled the vacancy with a new hire. Then, on September 5, Pinheiro received a disciplinary warning for asserted mistakes in work that he performed on August 21, 27, and 28. During 5 of the 10 full weeks following his recall, the Respondent scheduled Pinheiro for overtime work. During this same period, approximately 20 percent of Pinheiro’s coworkers received no scheduled overtime.
On October 3, a day on which he was scheduled to work overtime, Pinheiro left without working the overtime, mistakenly believing his schedule had been changed. On October 6, Pinheiro confronted Sedano in Sedano’s office over his belief that he had been denied an overtime opportunity on October 3. Pinheiro asked why another employee was doing work Pinheiro thought he was scheduled to do. Sedano explained that, because of “this union thing and . . . trouble with the Labor Board, that now [Respondent is] going to have to start going by the Employee Handbook” and award overtime in accordance with seniority. In response, Pinheiro said either, “suck d—k” or “suck my d—k.” In response, the Respondent suspended Pinheiro on October 8 pending an investigation, and discharged him on October 17 for insubordination.
iv. analysis
To establish a prima facie case of a violation under the Board’s decision in Wright Line,8 the General Counsel must establish that Pinheiro’s protected conduct was a substantial or motivating factor in the Respondent’s adverse employment actions. Manno Electric, 321 NLRB 278, 281 (1996), affd. 127 F.3d 34 (5th Cir. 1997). If the General Counsel makes the required initial showing, the burden then shifts to the employer to prove, as an alternative defense, that it would have taken the same action even in the absence of Pinheiro’s union activity. Id. at 280 fn. 12, 281.
We agree with the judge that the General Counsel met his initial burden with respect to the Respondent’s refusal to transfer Pinheiro to the night shift. We further assume, for the purpose of deciding this case, that the General Counsel met his initial burden with respect to the other challenged employment decisions involving Pinheiro, namely the disciplinary warning, denial of overtime, suspension, and discharge.9 We turn now to whether the Respondent carried its rebuttal burden regarding these employment actions.
A. Denial of Transfer to Night Shift10
The Respondent initially hired Pinheiro in April 2002 to work the evening shift on the 5-Axis and Toshiba machines. Following his lawful layoff in April 2003, Pinheiro was recalled in July 2003 to a “floater” position on the day shift.11 Mark Slater, Respondent’s president, testified that the Respondent recalled Pinheiro from layoff because Pinheiro was an active union supporter and in order to keep Respondent “out of trouble.”12 In late July or early August, Pinheiro asked Day-Shift Supervisor Sedano to reassign Pinheiro to an opening for a 5-Axis operator on the evening shift. Although Sedano said he would “get back to” Pinheiro, he never did. Having received no response from Sedano, Pinheiro repeated his request to Production Manager Bechtol, emphasizing that he was originally hired on the evening shift for the 5-Axis and would like to return to that assignment. There is no evidence that Bechtol ever responded to Pinheiro’s request, even though the position had not been filled, or that Bechtol expressed any concern regarding Pinheiro’s ability to work on the 5-Axis.
A week later, Pinheiro learned that someone else had been hired for the 5-Axis evening-shift position. Pinheiro expressed his disappointment to Slater, again emphasizing his relevant experience. Slater responded that Pinheiro was “less trouble on the day shift.” When challenged by Pinheiro, Slater explained that by “less trouble,” he meant that Pinheiro was more productive on the day shift. Pinheiro replied, “I never had any bad production on nights, I’ve never had any bad production reports on nights.” Slater did not contest Pinheiro’s statement. Pinheiro then accused Slater of keeping him on the day shift to keep him “under [Slater’s] thumb” because of Pinheiro’s union activity. There is no evidence that Slater responded or attempted to disabuse Pinheiro of that opinion. Nor is there is evidence to corroborate Slater’s claim that Pinheiro was more productive on the day shift. To the contrary, the record shows that Pinheiro’s production was not better on the day shift.13 Accordingly, a reasonable inference is that Slater’s repeated use of the term “trouble” to describe Pinheiro was, indeed, a reference to Pinheiro’s union activity, rather than to his productivity.14
In light of these circumstances we find, and our dissenting colleague concedes, that the General Counsel met his initial burden under Wright Line of establishing that Pinheiro’s union activities were a motivating factor in the Respondent’s decision to deny his transfer request. Respondent’s knowledge of Pinheiro’s union activity and its animus toward that activity were initially established in a related case where the Board found that the Respondent unlawfully disciplined Pinheiro on January 31 and March 25 because of his union activities.15 We note also that the Respondent recalled Pinheiro to the day shift in order to avoid an unfair labor practice charge. However, that surely does not establish that the Respondent approved of or condoned union activity. To the contrary, it shows that Pinheiro’s union activity was never far from the Respondent’s mind. The fact that the Respondent was prepared to tolerate that union activity for a day-shift job (under the Respondent’s thumb) does not establish that it would treat him nondiscriminatorily on the issue of transfer to the night-shift job.
Contrary to our dissenting colleague, and in agreement with the judge, we further find that the Respondent has not satisfied its Wright Line rebuttal burden. To establish its Wright Line defense, the Respondent cannot simply present a legitimate reason for its actions but must persuade that the same action would have taken place even in the absence of the protected activity.16 This, we find, the Respondent failed to do.
Our dissenting colleague asserts that the Respondent did not transfer Pinheiro to the night-shift job because of Pinheiro’s alleged difficulty in operating the 5-Axis machine. However, it is significant that the Respondent did not give that as the reason for the failure to transfer Pinheiro. Rather, the Respondent told Pinheiro that he was more productive on the day shift. However, we have found no evidence to support that claim. More likely, the Respondent was suggesting Pinheiro would do better during the day because he could be watched more carefully during the day.
Further, even if we take into account the belated explanation of poor performance on that machine, the explanation does not withstand scrutiny. The evidence the Respondent proffered regarding Pinheiro’s alleged difficulty operating and performing on the 5-Axis is neither clear nor persuasive. The judge found that the Respondent’s managers agreed that Pinheiro could competently operate the 5-Axis. The judge did not credit testimony by Respondent’s witnesses Bechtol and Slater, on which our dissenting colleague relies, regarding Pinheiro’s allegedly poor ability to operate the 5-Axis.17 The only documentary evidence regarding Pinheiro’s work performance before his layoff is his February 6 performance review by Supervisor Eddie Rogers which, likewise, does not specifically identify deficiencies in Pinheiro’s 5-Axis set-up work.18 Finally, the record is devoid of disciplinary or other records showing a history of such difficulties.
The circumstances surrounding the Respondent’s hiring of Steven Butkus to fill the 5-Axis evening-shift position cast further doubt on the Respondent’s asserted justification for not transferring Pinheiro to that position. The Respondent contends that an important qualification for the opening was “job-shop” experience doing set-up work on the 5-Axis machine.19 According to Respondent, it hired Butkus based on his experience working in “job shops” similar to Respondent’s, and on Butkus’ representation during the interview that he had experience doing set-up work. Despite the importance Respondent claimed to place on applicants’ job-shop and set-up experience, there is no evidence that it made any attempt to contact Butkus’ previous employers and confirm that he had the necessary experience and qualifications. Rather, Bechtol relied on his “general knowledge” of shops in the area, and his “personal knowledge” of companies listed on Butkus’ application.20 That Respondent did so at some risk of hiring an unqualified employee is borne out by the fact that Butkus proved unable to do set-ups, and his work was slow. Indeed, Respondent fired Butkus within weeks of hiring him. The Respondent’s decision to offer employment to Butkus in the absence of any confirmation that he had the necessary, high-priority job-shop and set-up experience stands in stark contrast to its treatment of Pinheiro, who had demonstrated his competence as a 5-Axis operator.
Our dissenting colleague notes that Butkus represented on his application that he had prior experience in setting up the 5-Axis machine. In light of the Respondent’s defense herein, one would think that the Respondent would be more interested in confirming the accuracy of Butkus’ claim and learning how well or poorly Butkus performed. As noted above, there is no evidence that the Respondent ever inquired or checked into this matter.21 In fact, the judge found that Butkus had no history of set-up work on that machine, and the Respondent later discharged Butkus because of his inability to perform the work.
For all of these reasons, we disagree with our dissenting colleague’s conclusion that the Respondent’s selection of Butkus over Pinheiro was a legitimate exercise of its business judgment. In any event, the relevant inquiry is not whether the Respondent might have had a reasonable justification for the decision to hire Butkus. The issue is whether the Respondent established that it would have denied Pinheiro’s transfer request in the absence of Pinheiro’s union activity. On the evidence before us, we find that it did not. Accordingly, we adopt the judge’s unfair labor practice finding.
B. Disciplinary Warning
The Respondent issued a disciplinary warning to Pinheiro on September 5, after he failed to properly machine parts on three dates: August 21, 27, and 28. The judge found that the Respondent failed to show that it would have issued the discipline absent Pinheiro’s union activity. According to the judge, the Respondent’s reliance on the August 21 and 28 incidents was pretextual because Pinheiro was not solely at fault for those errors. Pinheiro admitted that the August 27 incident was his fault, and the judge recognized that the Respondent could issue disciplinary write ups for only one discrepancy. Nevertheless, the judge found that the warning was unjustified because “there [was] no evidence that [the incident] was of such a nature” as to warrant discipline. We reverse.
It is undisputed that Pinheiro incorrectly machined the parts cited in the warning. He was solely at fault for the August 27 error and partly responsible for the errors that occurred on August 21 and 28. The Respondent has imposed discipline on other employees with similar error records. For example, the Respondent issued written warnings based on one machining error to Erick Franklin, John Lombardo, Brad Green, Juan Torres, Sergio Barragan, and Vikas Sharma. Indeed, although not mentioned by the judge, the Respondent issued a warning to Pinheiro on November 14, 2002, prior to any union activity on his part, based on one error.
In Allied I, the Board found that the Respondent violated Section 8(a)(3) and (1) by issuing a warning to Pinheiro in January for failing to completely machine a part. The part was passed by the Respondent’s inspector, who thus was partly responsible for the error. However, that error was easily corrected by placing the part back on the machine, the Respondent failed to show that any other machinist would have been disciplined for “so harmless an error,” the inspector received only an oral reprimand, and the discipline was imposed immediately after Pinheiro told supervisors that he planned to file charges with the Board.22 The September 5 discipline, and the errors on which it was based, differ. The discipline followed Pinheiro’s having made three machining errors within a 7-day span. Thus, our finding that this discipline was lawful is consistent with the Board’s findings in Allied I. See also Desert Toyota, 346 NLRB No. 4, slip op. at 4 (2005) (discipline nondiscriminatory where employee Pranske twice engaged in similar misconduct in a short period of time).
C. Denial of Overtime
The Respondent assigned Pinheiro to 40-hour shifts with no overtime for the first 3 weeks following his recall from layoff on July 23, but scheduled him for overtime for 5 of the 7 remaining weeks of his employment. The judge found that the Respondent discriminatorily denied overtime to Pinheiro following his recall.23 The judge found that the “vast majority of employees were constantly scheduled for overtime.” The judge also cited the experience of employee Rusalin Manea, who was scheduled for overtime in the first 4 weeks following his recall.24
In reversing, we assume arguendo that the General Counsel has established a prima facie case.25 However, the Respondent has shown that Pinheiro would have been denied overtime even if he had not engaged in union activity. The Respondent’s assignment of overtime to Pinheiro was consistent with its treatment of other employees. During each of the 10 full weeks between Pinheiro’s recall and his discharge, more than 20 percent of unit employees received no scheduled overtime. In faulting the Respondent for failing to offer Pinheiro overtime immediately following his recall, the judge was requiring the Respondent to treat him more favorably than his coworkers. In fact, Pinheiro would reasonably be expected to have worked less overtime than other employees, not more. Other employees were assigned overtime when the machine they operated was in high demand. On the other hand, as a floater, Pinheiro’s overtime turned on both overall workload and the absence of the person usually assigned to a particular machine.
Contrary to the judge, the fact that the Respondent scheduled Manea to work overtime immediately after his recall does not show disparate treatment. The Respondent recalled Pinheiro weeks before Manea, whose experience in September says nothing about Pinheiro’s experience in July. The Respondent offered comparable overtime opportunities to the two employees during the 3 weeks after Manea’s recall and before Pinheiro’s suspension. Pinheiro worked overtime during 2 of those weeks while Manea worked overtime in all 3. The difference of 1 week does not support an inference of disparate treatment.
D. Suspension and Discharge
When Pinheiro reported on October 3 to work his scheduled overtime, he asked Sedano where he was supposed to work that day and Sedano told him to look at the schedule. After checking a schedule, Pinheiro told Sedano that he was not scheduled to work and would be going home. Later, Sedano checked the document Pinheiro reviewed and saw that it was the schedule for the wrong week; the week of October 6–10. He concluded that Pinheiro had mistakenly gone home.
On October 6, not realizing that he had made a mistake, Pinheiro confronted Sedano in Sedano’s office to complain about the lost overtime opportunity on October 3. Sedano explained that, because of “this union thing and . . . trouble with the Labor Board, that now [Respondent is] going to have to start going by the Employee Handbook” and award overtime in accordance with seniority.26
As mentioned above, Pinheiro responded to Sedano’s statement by saying either “suck d—k” or “suck my d—k” as he exited Sedano’s office. At least three employees were within hearing distance of the exchange. In response, the Respondent suspended Pinheiro on October 8, pending an investigation. After completing its investigation, the Respondent discharged him on October 17. Pinheiro’s separation report read in pertinent part: “Termination—On 10/6/03 you cussed out your supervisor, Miguel Sedano. This is considered an act of insubordination. Reference Employee Handbook pages 14–15. You have a poor work record and this misconduct cannot be tolerated.”
Contrary to the judge, we find that the Respondent established that this outburst would have resulted in Pinheiro’s discharge even in the absence of his union activity. First, the handbook provisions cited in Pinheiro’s separation report provide for disciplinary action up to and including termination for rude treatment of employees and insubordination. Pinheiro’s conduct was inarguably rude and insubordinate and his discharge was consistent with the Respondent’s disciplinary policy.27 Second, Pinheiro was lawfully cited for threatening a co-worker in his February 6 performance review covering the period September 3–December 2, 2002.28 His October outburst was thus a second offense. Third, the Respondent discharged employee Martin in June for spitting at and shouting obscenities at his supervisor. Pinheiro’s discharge was consistent with the Respondent’s treatment of Martin.
In finding that the discharge was unlawful, the judge concluded that the Respondent “has tolerated actions similar to Pinheiro’s and worse.” We disagree. The Respondent issued a warning to employee Viramontes for shouting obscenities at his supervisor in December 2001, and to employee Scott for altercations with another employee in 2003. In both cases, mitigating circumstances justified the decision not to discharge the employees.29 No such mitigating circumstances were shown in the case of Pinheiro. To the contrary, Pinheiro had been cited for a similar offense in his February performance review. Consequently, we find a discharge under these circumstances was not discriminatory. See Desert Toyota, supra.
In finding that the Respondent failed to meet its Wright Line burden, our dissenting colleague maintains that the reasons proffered by the Respondent for discharging Pinheiro were not the real reasons for the discharge. In so finding, the dissent fails to take the record into account. According to the dissent, the Respondent’s handbook policy was not a reason for the discharge. But the policy, as discussed above, provided for termination of rude and insubordinate employees.30 Moreover, the separation report specifically cites to the handbook.
Our dissenting colleague also asserts that the Respondent’s defense is undercut because the offenses committed by Martin, Viramontes, and Scott were qualitatively different and considerably more egregious. Our colleague is correct that all four men committed differing offenses. But it is rare to find cases of previous discipline that are “on all fours” with the case in question. Unlike our dissenting colleague, we do not fault the Respondent for being unable to show that it disciplined an employee for saying “suck d—k” to a supervisor. The standard of proof the Respondent must meet under Wright Line is that of the preponderance of the evidence. In the absence of countervailing evidence, such as that of disparate treatment based on protected activity, the Respondent met that standard by demonstrating that it has a rule regarding insubordinate and rude behavior, that Pinheiro had previously violated that rule,31 and that the rule had been applied to employees in the past. See Merillat Industries, 307 NLRB 1301, 1303 (1992).32
Amended Remedy
Having
found that the Respondent violated Section 8(a)(3) and (1) of the Act by
failing and refusing to transfer employee Marcelo Pinheiro to the night-shift
vacancy on the 5-Axis machine, we shall order that the Respondent cease and
desist and take certain affirmative actions designed to effectuate the policies
of the Act. We shall order the
Respondent to make Pinheiro whole for any loss of earnings and other benefits
he suffered as a result of the Respondent’s unlawful discrimination against
him. Backpay shall be computed as
prescribed in Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971). Interest shall be computed as provided in New Horizons for the Retarded, 283 NLRB
1173 (1987).
ORDER
The National Labor Relations Board orders that Respondent, Tower Industries, Inc. d/b/a Allied Mechanical, Ontario, California, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling its employees that its conduct was discriminatorily motivated.
(b) Failing and refusing to transfer its employees because they engaged in union or other protected concerted activities, or because they testified before the NLRB.
(c) Issuing written disciplinary notices to its employees because they engaged in union or other protected concerted activities, or because they testified before the NLRB.
(d) 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) Make Marcelo Pinheiro whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the amended remedy section of this decision.
(b) Within 14 days from the date of this Order, remove
from its files any reference to Pinheiro’s unlawful denial of transfer to the
night shift and Edwin Shook’s written disciplinary action, and within 3 days
thereafter notify the employees in writing that this has been done and that the
denial of Pinheiro’s transfer to the night shift and Shook’s written
disciplinary action will not be used against them in any way.
(c) 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.
(d) Within 14 days after service by the Region, post at its facility in Ontario, California, copies of the attached notice marked “Appendix.”33 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since August 15, 2003.
(e) 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 the Respondent has taken to comply.
Dated, Washington, D.C. May 31, 2007
______________________________________
Robert J. Battista, Chairman
______________________________________
Peter C. Schaumber, Member
______________________________________
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
Member Schaumber, dissenting in part.
I agree with my worthy colleagues on all issues except with their finding that the Respondent violated Section 8(a)(1), (3), and (4) by refusing to transfer employee Marcelo Pinheiro to a night-shift position operating its 5-Axis machine. In my view, the relevant evidence establishes that the Respondent would have reached the same decision even in the absence of Pinheiro’s union activity. Accordingly, I respectfully dissent from this finding of a violation.
The Respondent hired Pinheiro in April 2002 as a night-shift 5-Axis machine operator. He testified that “several months” after he was hired he was “taken off” the 5-Axis machine and transferred to a Toshiba machine. In April 2003, he was laid off but recalled to a floater position on the day shift on July 23, 2003.1 As a floater, Pinheiro operated different machines on an as-needed basis to fill in for vacationing employees and when “hot jobs” came up.2
In early August, Pinheiro requested a transfer to a 5-Axis operator position on the night shift. The Respondent considered him for the position, but ultimately selected someone else. Company President Mark Slater met with Pinheiro to explain the decision. Slater told Pinheiro that he was not selected to operate the 5-Axis machine on the night shift because he was “less trouble” on the day shift and that by “less trouble” he meant that Pinheiro’s production was better on the day shift.
The Respondent hired a new employee, Steven Butkus, for the position. Butkus was subsequently discharged when the Respondent determined that he too had problems on the 5-Axis.
Insuring that the 5-Axis machine was competently operated was important to the Respondent. It is more expensive to operate than Respondent’s other equipment and has the unique capability to machine parts on five rotary axes. The record evidence clearly shows that Pinheiro did not meet the Respondent’s standards as a 5-Axis operator.
Machinists on the 5-Axis are responsible for setting up the machine and then watching its operation to prevent the machine’s drill from breaking. Slater testified that Pinheiro had “several quality problems” operating the 5-Axis machine. Supervisor Miguel Sedano explained that one of Pinheiro’s problems was the manner in which he did his set ups. He testified that Supervisor Eddie Rogers complained that Pinheiro’s set-up ability “wasn’t as expected.” Sedano said he told David Bechtol, the Respondent’s production manager, that Pinheiro should not be transferred to the night shift because Pinheiro did not perform well on the 5-Axis prior to his layoff. Bechtol testified that Pinheiro was able to run the 5-Axis, but that he was not able to set it up for proper operation. He further testified that Pinheiro was not qualified to run the 5-Axis machine because of his problems operating that machine prior to his lay off.
My colleagues say that the Respondent’s evidence of Pinheiro’s problems on the 5-Axis machine is “neither clear nor persuasive” because it did not offer “specific examples or information.” I respectfully disagree. Sedano, Pinheiro’s immediate supervisor, testified that Pinheiro had a problem setting up the 5-Axis machine for operation, and he testified further that Supervisor Eddie Rogers made a similar complaint. Bechtol corroborated that testimony. Not surprisingly, Company President Slater testified more generally that Pinheiro’s work quality was deficient.3
The judge found that the “Respondent’s managers generally testified” that “Pinheiro could competently operate the 5-Axis.”4 Critically, however, she also acknowledged that the managers “generally testified that” Pinheiro “could not complete set up work for the machine.” The judge did not discredit that testimony, and it fully supports the Respondent’s Wright Line defense. Nonetheless, the judge found the Respondent’s reason for not transferring Pinheiro to the night shift was “pretextual.” The sole basis for this conclusion is her finding that Butkus, the employee hired instead of Pinheiro, “had no history of set up on” the 5-Axis machine. However, the record does not support this finding. Butkus represented on his application that he had 10-years experience on the 5-Axis machine and Bechtol, who hired Butkus, testified that Butkus told him that his prior experience included setting up the machine. Thus, the record refutes the judge’s finding that Butkus had no history of set-up work, and her finding that the Respondent’s reason for not transferring Pinheiro was pretextual is without merit.5
My colleagues argue that Pinheiro’s February 6 performance review undercuts the Respondent’s defense because it does not identify deficiencies in Pinheiro’s 5-Axis set-up work. But there is also no evidence that Pinheiro was working on the 5-Axis machine during the rating period. The performance review which describes the overall quality of Pinheiro’s work as “good,” covers a very limited period of time, 3 months out of the 13 months Pinheiro worked for the Respondent before his layoff. In light of Pinheiro’s testimony that he was taken off the 5-Axis machine “several months” after he was hired in April 2002, 5 months before the ratings period began, he more likely than not was not working on the machine during the rating period.6
Contrary to the majority, the fact that Butkus failed to meet the Respondent’s expectations does not establish the Respondent’s defense as pretextual. Obviously, the Respondent did not know Butkus’ work would fall below expectations when it hired him. As discussed above, the Respondent hired Butkus because he represented that he had 10 years of experience operating a 5-Axis machine. Pinheiro, in contrast, only operated the 5-Axis machine for the Respondent for a few months and, according to the Respondent’s witnesses, he was not very successful. Butkus thus appeared to be a successful 5-Axis machine operator, while the Respondent knew that Pinheiro was not.
Similarly, Butkus’ subsequent discharge as a result of his performance problems does not detract from the strength of the Respondent’s rebuttal case. The Respondent reasonably believed that Butkus was better qualified than Pinheiro to operate the 5-Axis machine. “[T]he crucial factor is not whether the business reasons cited by [the employer] were good or bad, but whether they were honestly invoked and were, in fact, the cause of the [decision].” Ryder Distribution Resources, 311 NLRB 814, 816 (1993) (quoting NLRB v. Savoy Laundry, 327 F.2d 370, 371 (2d Cir. 1964), enfg. in part 137 NLRB 306 (1962)). The most that can be said is that neither Butkus nor Pinheiro turned out to be qualified for the job.
Finally, the Respondent’s failure to contact Butkus’ prior employers to verify his qualifications does not show that the Respondent’s concern about Pinheiro’s lack of ability was pretextual. There was no evidence that the Respondent’s usual practice was to check references. While checking Butkus’ references would have been a wiser course, it is well-settled that the Board will not substitute its business judgment for that of the employer in evaluating whether conduct was unlawfully motivated. Framan Mechanical, Inc., 343 NLRB 408, 413 (2004).
For the foregoing reasons, I find a preponderance of the evidence establishes that the Respondent would not have transferred Pinheiro even in the absence of his union activity.
Dated, Washington, D.C. May 31, 2007
______________________________________
Peter C. Schaumber, Member
(seal) National
Labor Relations Board
Member Walsh, dissenting in part.
I agree with the majority in all respects except for their reversal of the judge’s finding that the Respondent discriminatorily suspended and discharged Marcelo Pinheiro. In view of the Respondent’s labor record, its prior treatment of Pinheiro, and the facts surrounding the suspension and discharge, it is plain to me that the Respondent seized on an unfortunate remark by Pinheiro, one that the Respondent itself provoked, as an excuse to rid itself of a union activist. My colleagues in the majority go astray by confining their attention to the remark itself and deeming it a dischargeable offense. In so doing, they substitute their own judgment for the Respondent’s actual motivation. Accordingly, I dissent.
A. Background: The Respondents’ Unlawful Antiunion
Campaign and its Unlawful Treatment of Pinheiro
The facts of this case played out against the background set forth in Allied Mechanical I, 343 NLRB 631 (2004). In the first few months of 2003, the Respondent unlawfully responded to a union organizing campaign by engaging in a variety of unfair labor practices and by committing objectionable conduct prior to the election. The Respondent unlawfully disciplined three employees and unlawfully discharged two of them. In addition, it directed coercive statements to employees and discriminatorily prohibited the posting of prounion literature.
Employee Marcelo Pinheiro was one of those directly affected. An open supporter of the Union’s campaign, Pinheiro received a written warning on January 31, 2003, the month the Union filed its election petition, only hours after he informed his supervisor that he would file Board charges over the Respondent’s removal of lawfully posted union fliers. The warning purported to address a production error. On March 6, Pinheiro served as the Union’s election observer. The Union lost, by a vote of 42–37; on March 13, it filed election objections alleging that the Respondent had engaged in misconduct. On March 25, while the objections were pending, the Respondent issued Pinheiro a second written warning, again addressing “quality problems.” The Board found that both warnings were pretextual, and were actually given to Pinheiro on account of his union activity.
After being laid off from early April through late July, Pinheiro returned as a floater on the day shift. Shortly after his return, he told his supervisor, Sedano, that he wished to be considered for the vacant position of 5-Axis machine operator on the night shift. But, as the Board finds today, the Respondent repeatedly frustrated Pinheiro’s efforts to land this assignment, in retaliation for his union activities in general and for his service as the Union’s election observer. Supervisor Sedano had told Pinheiro in response to Pinheiro’s initial request for the transfer that he would look into the matter and get back to him. But Sedano never did get back to Pinheiro. In early August, Pinheiro tried again, this time going up the chain of command to ask Production Manager Dave Bechtol for the transfer. Like Sedano, Bechtol told Pinheiro that he would look into the matter and get back to him. And like Sedano, he never did.
Pinheiro then discovered on his own that the Respondent had hired an outside applicant to fill the night-shift position. (The Respondent, however, had made no effort to determine whether the applicant could satisfactorily perform the job. And as it turned out, he could not, and was soon let go.)
After his discovery, Pinheiro met with Mark Slater, the Respondent’s president, to express his disappointment over not getting the night-shift job. Slater told Pinheiro that Pinheiro was “less trouble” on the day shift. Pinheiro said that he thought that what Slater meant was that Slater could keep Pinheiro under close observation on the day shift. Slater did not respond.
B. The Suspension and Discharge
Allied Mechanical I was tried in September. Pinheiro testified as a witness for the General Counsel against the Respondent. The events that led to Pinheiro’s suspension and discharge occurred in early October.
On Friday, October 3, because of an error in reading the work schedule, Pinheiro thought that the Respondent had discriminated against him in the allocation of overtime work. On Monday, October 6, Pinheiro approached his supervisor, Sedano, in Sedano’s office, and asked why it was that, “every time” that Pinheiro had a job assignment requiring overtime, he was taken off the job and someone else received the overtime. Sedano replied that the particular overtime work in question on October 3 had been reassigned from Pinheiro to another employee on the basis of seniority. Pinheiro challenged that explanation, asking Sedano, “Since when [has] seniority . . . ever played any role in who you give overtime to in this company?” Sedano replied, unlawfully (as the Board finds today), that the Respondent would follow the employee handbook regarding seniority because of the Union’s organizing campaign and the Respondent’s trouble with the National Labor Relations Board. Pinheiro knew that Sedano’s excuse was false, because he knew (and the record establishes) that there was nothing in the employee handbook about assigning overtime by seniority. Pinheiro turned his back on Sedano, began to walk away, and put his face in his hands. While still in Sedano’s office, he said, “Suck dick, what does a guy have to do to get a fair shake around here.”1 The judge expressly credited Pinheiro’s testimony about the remark:
[It] was not a word that I told him to do anything. It’s just I was disgusted . . . with the answer that he gave me and it was like a frustration. You see, I was frustrated with everything, not getting any respect or . . . being considered for anything. . . . [The remark] was just to myself. It was like in a low tone of voice.
The judge also expressly credited Pinheiro’s account of what happened next: Pinheiro returned to his work station. A few minutes later, Sedano approached him and told him that Pinheiro had been very disrespectful in directing that remark to him. Pinheiro told Sedano that he had not done so, but rather had said “suck dick” to himself, in frustration. Pinheiro then told Sedano, “I apologize for saying a bad word.”
Two days later, on October 8, the Respondent suspended Pinheiro for his “actions and comments” towards Sedano. On October 16, the Respondent discharged Pinheiro for “cuss[ing] out” Sedano, which it characterized on the employee separation report as “an act of insubordination.”2
C. The Judge’s Decision and Applicable Principles
Applying Wright Line,3 the judge found that a preponderance of the credible evidence supported a finding that the Respondent suspended and discharged Pinheiro because of his union and NLRB activity. The judge also found that Pinheiro’s statement did not remove him from the protection of the Act. In making those findings, the judge observed that: the Respondent had knowledge of Pinheiro’s union activity; the Respondent repeatedly demonstrated animus, even in Sedano’s comments to Pinheiro during their October 6 conversation; that the discussion during that meeting pertained to wages, hours, and working conditions; that Pinheiro uttered his remark in frustration, not in anger; and that such language was “clearly within the ambit of other profanity used on the work floor by and to supervisors.”
In view of the credited evidence, I agree with that reasoning. It is important to remember that this case is not about whether Pinheiro’s remark justified his discharge. It goes without saying that, under the Act, an employer may discharge an employee for good reason, bad reason, or no reason at all so long as it is not for union or concerted protected activities. Ryder System, Inc., 302 NLRB 608 (1991); see Associated Press v. NLRB, 301 U.S. 103, 132 (1937). What is at issue here is not whether the remark justified the Respondent in discharging Pinheiro, but whether it would have caused the discharge even in the absence of his protected activities. Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345, 1352 (3d Cir. 1969) (“the policy and protection provided by the National Labor Relations Act does not allow the employer to substitute ‘good’ reasons for ‘real’ reasons when the purpose of the discharge is to retaliate for an employee’s concerted activities”).4 I believe the majority loses sight of that essential distinction.
D. The Respondent’s Defense
The majority assumes that the General Counsel met its Wright Line burden of establishing that Pinheiro’s protected activity was a motivating factor in the Respondent’s decision to discharge him. But, for a series of reasons, it finds that the Respondent satisfied its burden of showing that it would have suspended and discharged Pinheiro for his conduct even in the absence of his protected activities. I disagree with each of those reasons.
First, my colleagues in the majority assert that Pinheiro’s discharge for “rude treatment of employees and insubordination” was permissible under the rules set forth in the Respondent’s employee handbook. But that proves nothing. Again, the question is not whether the Respondent had cause to discipline Pinheiro, but why it did so. The language of the handbook does not advance the majority’s argument.5
Second, my colleagues assert that, because Pinheiro had previously received a warning for a dispute with a coworker, “[h]is October outburst was a second offense.” That claim is a make-weight, at best. Although Pinheiro had received an annual review in 2002 that mentioned an incident when he said that he would “kick [a coworker’s] ass,” he had received no discipline for that statement. And the Respondent made no mention of this alleged prior offense when it suspended or discharged Pinheiro, even though the discharge form specifically provided for the listing of prior misconduct and disciplinary action. Thus, even if the earlier remark might have justified increased punishment, the Respondent did not rely upon it.
Third, my colleagues assert that Pinheiro’s discharge was consistent with discipline meted out to other employees. That assertion is simply false. The majority relies on the discipline received, on various occasions, by employees Martin, Viramontes, and Scott. Each of those offenses, however, was qualitatively different and considerably more egregious. In addition, and in spite of the fact that their conduct was worse, two of those employees received lesser punishment.
The Respondent discharged employee Martin for spitting at and shouting obscenities at his supervisor. The Respondent’s own account of the incident was that Martin
[J]ust flew off the handle and started yelling and screaming, in Eddie’s face, swearing at him, threatening him, spitting on him, calling him obscenities and just, basically, went crazy.
Employee Viramontes was disciplined for saying “Fuck you. . . . Fuck it, I’ll just go home,” to his supervisor when the supervisor was attempting to give Viramontes a work assignment. Viramontes was plainly addressing his remark to the supervisor. The Respondent issued him a warning letter.6
Employee Scott was given the choice of attending anger management school or resigning after first getting into a physical altercation with another employee and then, 1 month later, attempting to choke him. The majority’s explanation for his receiving more lenient treatment than Pinheiro—that his conduct involved another employee, not his supervisor—simply does not ring true.
Finally, the majority does not dispute the judge’s finding, based on the admission of the Respondent’s management, that the use of profanity was common among both employees and supervisors.
By focusing their attention exclusively on Pinheiro’s remark and ignoring the context, my colleagues conclude that the Respondent established that it would have discharged Pinheiro even in the absence of his protected activity. For the reasons just discussed, I find that conclusion utterly unsupportable. Pinheiro may not have been perfect, but the Respondent did not fire him for that reason. Contrary to my colleagues’ assertion, I have in fact considered the entire record, and such consideration compels the conclusion that the Respondent acted in response to Pinheiro’s protected activity and thereby violated the Act.7
Dated, Washington, D.C. May 31, 2007
______________________________________
Dennis P. Walsh, Member
National Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not tell you that our conduct was discriminatorily motivated.
We will not refuse to transfer you because you engaged in union or other protected concerted activities, or because you testified before the NLRB.
We will not issue written disciplinary notices to you because you engaged in union or other protected concerted activities, or because you testified before the NLRB.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will make Marcelo Pinheiro whole for any loss of earnings and other benefits resulting from his denial of transfer to the night shift, plus interest.
We will, within 14 days from the date of this Order, remove from our files any reference to the unlawful denial of transfer to the night shift of Marcelo Pinheiro, and the unlawful disciplinary notice to Edwin Shook, and we will, within 3 days thereafter, notify them in writing that this has been done and that the unlawful denial of transfer to the night shift will not be used against Pinheiro in any way and that the unlawful disciplinary notice will not be used against Shook in any way.
Tower Industries, Inc. d/b/a Allied Mechanical
Michelle Youtz Scannell, Esq., for the General Counsel.
Steven D. Atkinson, Esq., of Los Angeles, California, for the Respondent.
Robert J. Stock, Esq., of Los Angeles, California, for the Charging Party.
DECISION
Statement of the Case
Mary Miller
Cracraft, Administrative Law Judge: At issue is whether Tower Industries, Inc.
d/b/a Allied Mechanical (Respondent)1
violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act (the
Act)2 by denying a transfer to the night shift,
issuing a written warning, denying overtime, suspending, and discharging
employee Marcello Pinheiro and by issuing written discipline to employee Edwin
Shook because Pinheiro and Shook assisted United Steel Workers of America,
AFL–CIO–CLC (the Union), and because Pinheiro and Shook took part in a
representation hearing and an unfair labor practice hearing before the
NLRB. Also at issue are allegations that
Respondent violated Section 8(a)(1) of the Act by making an implied threat of
relocation and an implied inducement to forego union support, and by telling an
employee that its conduct was discriminatorily motivated.
On the entire
record,3 including my observation of the demeanor
of the witnesses,4 and
after considering the briefs filed by counsel for the General Counsel and
counsel for the Respondent, I make the following
Findings of Fact
i. jurisdiction and labor organization status
Respondent is
a California corporation engaged in manufacturing machined parts. It maintains
its principal place of business in Ontario, California. During calendar year 2003, Respondent
purchased and received goods, supplies, and materials valued in excess of
$50,000 directly from sources located outside the State of California. Respondent admits and I find that it is an
employer within the meaning of Section 2(2), (6), and (7) of the Act. Respondent admits and I find that the Union
is a labor organization within the meaning of Section 2(5) of the Act.