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,
Foothill Sierra Pest Control, Inc. and General Teamsters Local 439. Cases 32–CA–22419
June 18, 2007
DECISION AND ORDER
By Members Liebman, Schaumber, and Kirsanow
On November 22, 2006, Administrative Law Judge Lana H. Parke issued the attached decision. The Respondent filed exceptions and a supporting 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 brief and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified below and orders that the
Respondent, Foothill Sierra Pest Control, Inc.,
1. Substitute
the following for paragraph 2(c).
“(c) Within
14 days from the date of this Order, remove from its files any reference to the
unlawful discharge, and within 3 days thereafter notify the employee in writing
that this has been done and that the discharge will not be used against her in
any way.”
2. Substitute
the attached notice for that of the administrative law judge.
Dated,
Wilma B. Liebman, Member
Peter C. Schaumber, Member
Peter N. Kirsanow, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
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 discharge any of you for supporting General Teamsters Local 439 or any other union.
We
will not in any like or related manner interfere
with, restrain, or coerce any of you in the exercise of the rights listed
above.
We will, within 14 days from the date of the Board’s Order, offer Kirtlye Wheeler full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
We
will make Kirtlye
Wheeler whole for any loss of earnings and other benefits resulting from her discharge.
We
will, within 14 days
from the date of the Board’s Order, remove from our files any reference to the
unlawful discharge of Kirtlye Wheeler, and we will, within 3 days thereafter, notify her in writing that this has
been done and that the discharge will not be used against her in any way.
Foothill Sierra Pest Control, Inc.
Gary M. Connaughton, for the General Counsel.
Peter Nordstrom, Office Manager (Foothill
Sierra Pest Control)) of
DECISION
Statement of the Case
Lana H. Parke, Administrative Law Judge. This matter was tried in Sonora, California on September 20 and 21, 2006 upon a Complaint and notice of hearing (the complaint) issued June 30, 20061 by the Regional Director for Region 32 of the National Labor Relations Board (the Board) based upon charges filed by General Teamsters Local 439 (the Union.) The complaint alleges that Foothill Sierra Pest Control, Inc. (the Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) by discharging its employee Kirtlye Wheeler because she engaged in union or other protected concerted activities. The Respondent essentially denied all allegations of unlawful conduct.
i. issue
Did the Respondent violate Section 8(a)(1) and (3) of the Act by discharging employee Kirtlye Wheeler because she engaged in union or other concerted, protected activities?
ii. jurisdiction
The Respondent, a
iii. the facts
During the period relevant to this matter, Jim Tassano
(Mr. Tassano) was president and co-owner of the Respondent with David Lepape
(Mr. Lepape), among others, serving as supervisor. The Respondent employed 10
to 12 individuals as applicators, i.e. workers who sprayed herbicides and
pesticides on customers’ properties. One of the Respondent’s applicators was
Kirtlye Wheeler (Ms. Wheeler), hired as an applicator/trainee on November 20,
2004.3 Ms. Wheeler received her applicator
license in 2004 and passed the required
On March 21, Ms. Wheeler sprayed sterilant chemicals on extensive ornamental landscape borders at the residential property of the Respondent’s customer, Joseph Cygal, (the Cygal job or the Cygal property). Thereafter Mr. Cygal complained that the spraying had killed plants in his borders. On about April 19, Mr. Lepape, accompanied by Ms. Wheeler, inspected the Cygal property and concluded that Ms. Wheeler had applied chemicals contraindicated for use on ornamental plants, resulting in the destruction of numerous plants.5 While at the Cygal property, Mr. Lepape contacted Mr. Tassano by cell phone, informed him that Ms. Wheeler had sprayed sterilants in Mr. Cygal’s flower beds, and described the damage. Ms. Wheeler told Mr. Lepape that she would do whatever it took to rectify the situation, including resigning or paying for the damaged plants. Mr. Lepape told her not to worry about it, saying that such mistakes happened to everyone. When Mr. Lepape returned to the facility, he once again described the damage at the Cygal property to Mr. Tassano.
In May, Amador California County Department of Agriculture commenced an investigation of the Respondent (the county investigation) prompted in large part by the problems at the Cygal job. In late May, the Respondent received the estimate of damages stemming from the Cygal job: $2229. In a conversation with Mr. Tassano, Ms. Wheeler offered to pay the damages and/or to resign, but Mr. Tassano declined her offer.
When the weed season ended in May, the Respondent transferred Ms. Wheeler, along with most of the weed control applicators, to pest control. Mr. Lepape urged Mr. Tassano to assign Ms. Wheeler permanently to pest control or to fire her. Mr. Tassano refused, saying he wanted to assign Ms. Wheeler back to weed control when the weed season resumed because he thought she could learn from her mistakes. On June 10, the Respondent paid the full appraised amount of damages ($2229) to Joseph Cygal in settlement of his claim.6 Although, during the course of the Cygal job problem, Mr. Lepape informed Ms. Wheeler that she had used the wrong products in the wrong places and reviewed chemical labels with her, the Respondent neither disciplined nor requested reimbursement from Ms. Wheeler for her mistake on the Cygal job.7
On October 12, the Amador County Department of Agriculture issued its investigatory findings, notifying the Respondent, inter alia, that Ms. Wheeler8 had applied herbicide chemicals at the Cygal job that were not labeled for use in ornamental landscape sites. The county proposed to assess the Respondent a fine of $2400 and notified the Respondent of its right to a hearing on the proposed action, which the Respondent elected. When Mr. Tassano informed Ms. Wheeler of the proposed fine, she again offered to resign and/or pay the fine. Although the Respondent had never before been fined for misuse of chemicals, Mr. Tassano told Ms. Wheeler that neither action was necessary and that everything was fine.
In October, weed control season having commenced, Mr. Tassano told Ms. Wheeler that he wanted her to return to weed control. Ms. Wheeler said she was not comfortable with returning to weed control because of what had happened. Although Mr. Tassano said he could really use Ms. Wheeler on the weed control team, he agreed to her remaining on pest control.
In November, the Respondent announced an alteration in its
employee compensation procedures, essentially changing commissions from weekly
to monthly imbursement. Believing the change significantly decreased employees’
wages, Ms. Wheeler contacted the
On November 30, Mr. Tassano and Mr. Lepape attended a hearing conducted by the Amador County Department of Agriculture regarding the county investigation. At the hearing, the county presented the Respondent with a binder that contained the evidence collected by the county during its investigation. The binder included color photographs of the damaged Cygal property. The photographs portrayed expanses of ornamental borders in which dead foliage and desiccated stalks predominated. Mr. Tassano did not look at the photographs until the following day. When he did, he was shocked by the enormity of the damage done at the Cygal job. At some time thereafter, Mr. Tassano reviewed other damages for which Ms. Wheeler had been responsible: the Terry Jewell job on February 29, the Rich Patane job on March 21, the Kristi Jarvis job on April 5, and the Al Dunkel job on April 13, the Jay De Oliveri job on April 21, and the Glen Dooley job on April 25.9 According to Mr. Tassano, he also considered that in late November or early December he had to “[get] on [Ms. Wheeler’s] case” about spraying pesticide on grape vines, which was a serious illegality even though the customer had requested it.10
On about December 9, Mr. Tassano and his wife, Ilene (Mrs. Tassano), learned that two staff group photos that hung in the main employee room at the facility had been defaced: on each photo a large black “X” had been drawn through Mrs. Tassano’s face.11 In the days following, Mr. Tassano called a couple of employees into his office to ask if they had defaced the photos; he did not ask Ms. Wheeler, and no one suggested she was responsible.
Mr. Lepape became aware that the Respondent’s employees
were engaging in union organizational activity when he overheard seven or eight
employees openly discussing the
Notwithstanding absence of any evidence impugning her, at some point Mr. Tassano came to believe that Ms. Wheeler was responsible for the defacement of his wife in the group photographs.13 On the evening of December 14, the unresolved photograph defacement incident precipitated a domestic crisis between Mr. and Mrs. Tassano. Mrs. Tassano became particularly upset at having been targeted and her distress was compounded by the fact that only one employee had thanked her for her efforts in preparing food and gifts for a company Christmas party. Mr. Tassano was also upset and felt he had to take some action. Mr. Tassano testified that while he did not fire Ms. Wheeler because of the defacement, the circumstances “got the blood to boil a little bit higher than it was.”
On December 15, Mr. Tassano’s ire continued to build. At an employee meeting held that morning (which Ms. Wheeler, on an excused absence, did not attend), Mr. Tassano chastised the staff for their ingratitude to Mrs. Tassano and circulated the photographs of the Cygal job for employees to see. Later that afternoon, Mr. Tassano told Ms. Wheeler he was firing her. When Ms. Wheeler asked the reason, Mr. Tassano told her he had just seen the pictures from the Cygal job, and he could not trust her to spray anymore.
Ms. Wheeler asked, “The job I did almost a year ago?”
Mr. Tassano said, “Yeah.”
Ms. Wheeler told Mr. Tassano that he was “some piece of work” and that she hoped he could live with himself and his lack of integrity. Mr. Tassano gave Ms. Wheeler her final check and told her to clear out her truck and locker, which she did.
According to Mr. Tassano, he fired Ms. Wheeler because he could no longer trust her performance as an applicator, a decision that was spurred by his belief that she had defaced his wife’s image in a group photograph.14
iv. discussion
The question of whether the Respondent violated Section
8(a)(3) in terminating Ms. Wheeler rests on its motivation. The Board has
established an analytical framework for deciding cases turning on employer
motivation. Wright Line, 251 NLRB
1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982). To prove an employee was discharged in violation of Section
8(a)(3), the General Counsel must first persuade, by a preponderance of the
evidence, that an employee’s protected conduct was a motivating factor in the
employer’s decision. If the General Counsel makes such a showing, the burden of
persuasion shifts to the employer “to demonstrate that the same action would
have taken place even in the absence of the protected conduct.” Wright Line at 1089. The burden shifts
only if the General Counsel establishes that protected conduct was a
“substantial or motivating factor in the employer’s decision.” Budrovich Contracting
The elements of discriminatory motivation are union activity,
employer knowledge, and employer animus. Farmer
Bros. Co., 303 NLRB 638, 649 (1991). The General Counsel has established
these elements herein. First, the General Counsel demonstrated that Ms. Wheeler
engaged in union activity by contacting the Union, talking to other employees
about the
The Respondent essentially based Ms. Wheeler’s discharge on her herbicide misapplication at the Cygal property and on Mr. Tassano’s belief that she defaced his wife’s photographs.16 Unquestionably, Ms. Wheeler caused catastrophic and costly damage to the Cygal property for which the Respondent could justifiably have fired her. Ms. Wheeler caused the damage on March 21; by mid-April, Mr. Lepape had detailed the damages to Mr. Tassano, by late May, Mr. Tassano knew the damage estimate was $2229, by mid-June, Mr. Tessano had compensated Mr. Cygal $2229 for the damages, and by mid October, Mr. Tassano was aware the Amador County Department of Agriculture proposed to fine the Respondent $2400 for the misapplication. On none of those occasions did the Respondent seek to discharge or even to discipline Ms. Wheeler. On the contrary, Mr. Tassano pardoned the blunder, declined Ms. Wheeler’s offers of reimbursement, and in October urged her to resume herbicide spraying. It was not until Mr. Tassano learned of Ms. Wheeler’s union activity in December that the pardonable became unpardonable. While Mr. Tassano ascribed his volte face to having, for the first time, seen photographs of the damaged Cygal property, I cannot accept that. Certainly the photographs dramatized the damage, revealing sered and barren expanses where decorative vegetation had once apparently flourished. However, Mr. Tassano was no novice at the pest control business, and he must have been generally, if not specifically, aware of what kind of damages a $2229 bill entailed. Moreover, Mr. Tassano saw the Cygal job photographs on December 1, but said nothing to Ms. Wheeler about them for 2 weeks even though, by his account, his blood was boiling. Timing is a significant factor in ascertaining motive. See, e.g. LB&B Associates, Inc., 346 NLRB No. 92 slip op. at 2 (2005); Desert Toyota, at slip op. 3; Detroit Paneling Systems, 330 NLRB 1170 (2000). Given the months-long gap between damage and discipline herein, the only reasonable inference to be drawn is that something other than Ms. Wheeler’s long-past spraying debacle brought Mr. Tassano’s blood to the boil. Ms. Wheeler’s damage to the Cygal property having been long resolved, the only notable circumstances at the Respondent’s facility at the time of Ms. Wheeler’s discharge were the defacement of Mrs. Tassano’s photographs and Ms. Wheeler’s union activity.
Turning to Mr. Tassano’s suspicion that Ms. Wheeler defaced Mrs. Tassano’s photographs, which hardened his resolve to discharge her, Mr. Tassano does not suggest that any actual evidence supported his belief. The lack of such proof does not, however, decide the matter. “Absent a showing of anti-union motivation, an employer may discharge an employee for a good reason, a bad reason, or no reason at all without running afoul of the labor laws.” Neptco, Inc., 346 NLRB No. 6, slip op at 2 (2005).17 However, the Respondent “must show that it had a reasonable belief that the employee committed the offense, and that it acted on that belief when it discharged [her].” McKesson Drug Co., 337 NLRB 935, 936 fn. 7 (2002); see also Midnight Rose Hotel & Casino, Inc., 343 NRB 1003, 1005 (2004) (employer must establish, at a minimum, that it had reasonable belief of employee misconduct); Yuker Construction, 335 NLRB 1072 (2001) (discharge based on mistaken belief does not constitute unfair labor practice, as employer may discharge an employee for any reason, whether or not it is just, so long as it is not for protected activity); GHR Energy, 249 NLRB 1011, 1012–1013 (1989) (demonstrating reasonable, good-faith belief that employees had engaged in misconduct sufficient). The question, therefore, is whether Mr. Tassano believed in good faith that Ms. Wheeler had defaced the photographs. I cannot find that he held any such good-faith belief. Although Mr. Tassano questioned a couple of employees about the vandalism, no one cast suspicion on Ms. Wheeler, and Mr. Tassano never broached the subject to her. Even when he fired Ms. Wheeler, although assertedly his suspicions made his “blood boil a little bit higher,” Mr. Tassano said nothing about the defaced photographs. The only reasonable inference to be drawn from his silence on the subject is that Mr. Tassano did not sincerely believe Ms. Wheeler was responsible. The evidence thus establishes that the Respondent’s stated reasons for discharging Ms. Wheeler are pretextual.
Since neither the herbicide misapplication at the Cygal property nor the photograph defacement provoked Ms. Wheeler’s discharge, process of elimination justifies an inference that the only remaining circumstance, Ms. Wheeler’s union activity, prompted the Respondent’s action. See State Plaza, Inc., supra; Construction Products, Inc., 346 NLRB No. 60 (2006); Grant Prideco, L.P., 337 NLRB 99 (2001). The pretextuality of the Respondent’s charges against Ms. Wheeler support an inference that animus toward Ms. Wheeler’s protected activities was the motivating factor in the Respondent’s decision to discharge her. The General Counsel has, therefore, met his Wright Line burden, and the Respondent has not established persuasively by a preponderance18 of the evidence that it would have (not just could have) discharged Ms. Wheeler even in the absence of her union activity. Desert Toyota, 346 NLRB No. 3, slip op. at 2–3 (2005); Webco Industries, 334 NLRB 608, fn. 3 (2001); Avondale Industries, 329 NLRB 1064, 1066 (1999); T&J Trucking Co., 316 NLRB 771 (1995). Accordingly, I find that by discharging Ms. Wheeler on December 15, the Respondent violated Section 8(a)(3) and (1) of the Act.
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 Sections 8(a)(3) and (1) of the Act on December 15, 2005 by discharging employee Kirtlye Wheeler.
4. 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 discriminatorily discharged employee Kirtlye Wheeler on December 15, 2005, it must offer her reinstatement insofar as it has not already done so and make her whole for any loss of earnings and other benefits, computed on a quarterly basis from date of suspension and/or discharge to 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).
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended19
ORDER
The Respondent, Foothill Sierra Pest Control, Inc.,
1. Cease and desist from
(a) Discharging any employee for engaging in union or other concerted protected activities.
(b) 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, insofar as it has not already done so, offer full reinstatement to Kirtlye Wheeler to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
(b) Make Kirtlye Wheeler whole for any loss of earnings and other benefits suffered as a result of the discrimination against her in the manner set forth in the remedy section of the decision.
(c) Expunge from its files any reference to the unlawful discharge of Kirtlye Wheeler and thereafter notify her in writing that this has been done and that the discharge will not be used against her 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 the Respondent has taken to comply.
Dated:
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
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 do anything that interferes with these rights. More particularly,
We will not discharge any of you for supporting General Teamsters Local 439 or any other union.
We will not In any like or related manner interfere with, restrain, or coerce any of you in the exercise of the rights listed above.
We will offer full reinstatement to Kirtlye Wheeler to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
We will make Kirtlye Wheeler whole for any loss of earnings and other benefits resulting from her discharge.
We will remove from our files any reference to the unlawful discharge of Kirtlye Wheeler, and
We will notify her in writing that this has been done and that the discharge will not be used against her in any way.
Foothill Sierra Pest Control, Inc.