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,
J.J. Cassone Bakery, Inc. and Bakery, Confectionary Tobacco Workers’
June 26, 2007
SUPPPLEMENTAL DECISION, ORDER, AND
DIRECTION OF SECOND ELECTION
By Chairman Battista and Members Liebman
and Schaumber
On February 22, 2006, Administrative Law Judge Steven Davis issued the attached supplemental decision.[1] The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief, cross-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 briefs and has decided to affirm the judge’s rulings, findings,[2] and conclusions as modified below, and to adopt the recommended Order as modified.[3]
Overview
The issues presented in this case concern the Respondent’s conduct during a union organizing effort at its facility. The judge found that the Respondent committed various violations of Section 8(a)(1) and (3), many of which occurred during the critical period before the December 21, 1999[4] representation election, thus constituting objectionable conduct. For the reasons stated in his decision, we agree with the judge’s findings that the Respondent violated the Act by discriminatorily suspending four employees, discriminatorily terminating four employees, and by making several unlawful statements, including threats, promises of benefits, and two interrogations.[5] We also affirm his conclusion that these unfair labor practices warrant setting aside the election.[6] As explained below, however, we reverse the judge’s finding that the Respondent violated Section 8(a)(3) and (1) of the Act by terminating employee Adan Aguilar.
Facts
On December 15, employee Marcelino Cortes informed fellow
employee Aurelio Viegas that Adan Aguilar and Cesar Calderon, both of whom were
active members of the
After reporting this incident to Cassone, Cortes asked him what he should do. Cassone suggested that Cortes file a police report, but Cortes told Cassone that he was not ready to go to the police. By December 16, Cortes had changed his mind, and he asked Cassone to accompany him to the police station. Cassone did so, and Cortes filed a complaint with the police. On December 18, Cassone saw Aguilar and Calderon in the parking lot outside the Respondent’s facility. Assuming that there were warrants for their arrests, Cassone called the police, who came and arrested Aguilar and Calderon, charging them both with menacing in the third degree. On December 19, based on that criminal charge and as a condition for his release on bail, an order of protection was issued against Aguilar requiring Aguilar to stay away from Cortes, his home, and his place of employment, and to refrain from threatening Cortes and all members of his household.[10]
Based on this incident, Cassone decided to terminate Aguilar’s employment. On December 20, the Respondent gave Aguilar a letter informing him of his discharge. In considering whether to impose discipline on Aguilar, Cassone did not interview either Aguilar or Calderon. Cassone testified that he did not believe that either would tell the truth, and that he also could not contact Calderon because he was no longer an employee.
Analysis
We find merit in the Respondent’s exceptions to the judge’s finding that the discharge of Aguilar violated Section 8(a)(3) and (1) of the Act. Specifically, we conclude that the Respondent has established that, even in the absence of Aguilar’s union activity, it would have discharged him, based on a reasonable belief that he had engaged in criminal misconduct directed at another employee.[11] Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
In order to meet its burden under Wright Line, the Respondent must show that it had a reasonable belief that Aguilar actually threatened Cortes, and that it acted on that belief when it discharged him. See McKesson Drug Co., 337 NLRB 935, 937 fn. 7 (2002) (citing, inter alia, GHR Energy Co., 294 NLRB 1011, 1012–1013 (1989)).[12] We find that the Respondent met this burden here. When the Respondent made its decision to discharge Aguilar, it took into account not only Cassone’s repeated conversations with Cortes about Aguilar’s threat, but also Cortes’ decision to involve the police and Aguilar’s subsequent arrest.[13] The reasonableness of the Respondent’s decision to act on this information was subsequently validated when the state court issued a protective order requiring Aguilar to stay away from Cortes and his family for 6 months. In short, Cortes’ account was found sufficiently meritorious in the criminal proceeding to warrant Aguilar’s subsequent arrest, and the issuance of the protective order. Accordingly, the Respondent has demonstrated that it had a reasonable belief that Aguilar engaged in criminal misconduct warranting his discharge.[14]
The Respondent did not interview Aguilar and Calderon
during its investigation. We disagree
with our dissenting colleague’s assertion that this omission demonstrates an
overriding discriminatory motive. It is
true that an employer may not assert a reasonable belief that an employee has
engaged in misconduct based on a sham investigation.
No reason has been shown why Cassone should not have believed Viegas’ account of the incident. Cassone did not immediately seize upon that account as grounds for discharging Aguilar. Instead, after hearing from Viegas that Aguilar threatened Cortes, Cassone initiated an investigation by seeking Cortes’ story. When Cortes initially declined to take his complaint to the police, Cassone did not pressure Cortes to reconsider, go to the police himself, or initiate any other adverse action against Aguilar. It was only after Cortes independently decided to involve the police, and after the police arrested Aguilar on Cortes’ charge, that Cassone decided to terminate Aguilar. By that point, the authorities had sufficiently corroborated Cortes’ charges against Aguilar.[15] Rather than questioning Cassone’s reaction to Cortes’ complaint, we find it significant that Cassone did not immediately discharge Aguilar. See ibid.
We further disagree with our colleague’s unsubstantiated assertion that the Respondent’s failure to interview Aguilar or Calderon was a deviation from its normal practice. In support of an identical argument, the judge cited a single instance in which the Respondent interviewed two employees alleged to have engaged in a “shouting match.” In the next sentence, the judge recognized that the Respondent did not always follow this “practice.” Thus, the evidence does not show that the Respondent regularly interviewed employees engaged in misconduct, much less those alleged to have engaged in criminal misconduct.[16] In these circumstances, we refuse to find that the Respondent’s internal process deviated from any established norm.
For the foregoing reasons, we find that the Respondent has met its Wright Line burden to show that it would have discharged Aguilar even absent his union activities.
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent, J.J.
Cassone Bakery, Inc.,
1. Substitute the following for paragraph 2(a).
“(a) Within 14 days from the date of the Board’s Order, offer Cesar Calderon, Cabrilio Flores, Jose Mario Castro, and Lorenzo Macua 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.”
2. Substitute the attached notice for that of the administrative law judge.
Dated,
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Robert J. Battista, |
Chairman |
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Peter C. Schaumber, |
Member |
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(Seal) National Labor Relations Board
Member Liebman, dissenting in part.
The Respondent has conceded that it had an unlawful motive in discharging union supporter Adan Aguilar—an unsurprising concession, in light not only of the evidence establishing that the Respondent first threatened Aguilar and then suspended him unlawfully, but also the Respondent’s reprisals against other prounion employees. Where the General Counsel has made a strong initial showing that an employer’s action was motivated by antiunion animus, the employer bears a “substantial” burden to prove that it would have taken the same action regardless of that unlawful motive.1 Contrary to the majority, the Respondent has not carried the substantial burden of establishing its defense.2 The record shows that the Respondent was intent on unlawfully separating Aguilar from its work force even before his final discharge and that it eagerly seized on the incident for which Aguilar was discharged.
The Respondent identified Aguilar as one of the early
leaders of the Union’s organizing drive, a campaign that it attempted to crush
through, among other unlawful acts, the suspension and discharge of employees
who supported the
On the night of December 15, away from work, Aguilar assertedly
threatened employee Marcelino Cortes, who had resigned from the
The Respondent relied only on Cortes’ version of Aguilar’s alleged threats, and declined even to interview either Aguilar or former employee and union supporter Cesar Calderon, the other participant in the incident. Its justification for this one-sided investigation is Cassone’s conclusory testimony that Calderon was no longer employed (the Respondent had already unlawfully discharged him) and that Calderon and Aguilar would have lied. The Respondent provided no basis for prejudging whether either man would have told the truth.5
The Respondent’s refusal to speak with Calderon or Aguilar about the incident also stands in contrast to the Respondent’s normal practice. On earlier occasions when there was a confrontation between employees or between employees and supervisors, the Respondent’s usual practice had been to interview the participants, even when mere verbal abuse was involved. It is certainly suspicious that the Respondent did not conduct interviews with respect to the more serious allegation of threats of physical harm. The majority relies on the existence of the protective restraining order to explain this departure from practice. But the Respondent itself has not represented that it relied on the restraining order in deciding against interviews. Nor has it been shown that the Respondent was even aware of the terms of the protective order at the time it made its decision not to conduct interviews. The Respondent’s failure to permit Aguilar to defend himself before imposing discipline therefore supports an inference that the Respondent’s motive was unlawful. See, e.g., Embassy Vacation Resorts, 340 NLRB 846, 849 (2003).
Further, the majority relies on Aguilar’s arrest and the protective order to find that the Respondent would have discharged Aguilar even absent his union activities. At the hearing, however, when Cassone was asked to explain the reason for Aguilar’s discharge, he ambiguously testified, “It had to do with the threats that he made against Marcelino Cortes and that whole incident.” Accordingly, the Respondent itself has never clearly asserted that the protective order or arrest provided the basis for Aguilar’s discharge. The majority also fails to take into account that the Respondent’s owner orchestrated the most significant aspects of the involvement by the police. This included the Respondent’s initial suggestion that Cortes (who had communicated his recantation of support for the Union) file a report, the personal attention provided by the Respondent’s owner in driving Cortes to the police station and helping him file the report, and the owner’s calling the police 2 days later (and 3 days before the election) in order to facilitate Aguilar’s arrest in front of a large number of fellow employees. The type and degree of attention provided by the Respondent’s owner regarding this incident, combined with the Respondent’s one-sided review of the incident, shows that the Respondent essentially employed a pretext to convert Aguilar’s unlawful indefinite suspension into a termination.6
As demonstrated by a full review of the record, the Respondent has failed to make out its Wright Line defense.7 Accordingly, its discharge of Aguilar should be found unlawful under Section 8(a)(3).
Dated,
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Wilma B. Liebman, |
Member |
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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 suspend or discharge you because of
your membership in, support for, and/or activities on behalf of Bakery,
Confectionary and Tobacco Workers’ Union, Local 3 (
We
will not threaten you with unspecified reprisals because of your
membership in, support for, and/or activities on behalf of the
We
will not question you about your membership in, support for, and/or
activities on behalf of the
We
will not threaten you that you would lose your pension plan and would be
discharged if the
We
will not demand that you cease organizing for the
We will not announce a new benefit consisting of a policy of giving loans to you for emergencies, and we will not deny existing benefits to you in order to induce you to cease your support for the Union.
We
will not tell you that the Union would ask you for proof that you are
legally authorized to work in the
We
will not threaten you that the Union would force us to reduce your hours
of work and we will
not threaten that you would lose other benefits if the
We
will not create the impression among you that your activities on behalf
of the
We
will not tell you that it would be futile for you to support the
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, within 14 days from the date of the Board’s Order, offer Cesar Calderon, Cabrilio Flores, Jose Mario Castro, and Lorenzo Macua 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.
We will make Cesar Calderon, Adan Aguilar, Cabrilio Flores, Jose Mario Castro, Lorenzo Macua, and Roberto Lostaunau whole for any loss of earnings and other benefits resulting from the discrimination against them, less any net interim earnings, plus interest.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful suspension of Adan Aguilar and the unlawful suspensions or discharges of Cesar Calderon, Cabrilio Flores, Jose Mario Castro, Lorenzo Macua, and Roberto Lostaunau, and we will, within 3 days thereafter, notify each of them in writing that this has been done and that the suspensions and discharges will not be used against them in any way.
J.J. Cassone Bakery, Inc.
Geoffrey Dunham, Esq., for the General Counsel.
Marc Silverman, Esq. (Schiff Hardin LLP), of
Bruce Cooper, Esq. (Haydon, Straci & Cooper),
of
SUPPLEMENTAL DECISION
Procedural
Background
Steven
Davis, Administrative Law Judge.
On January 31, 2002, Administrative Law Judge Howard Edelman issued a decision
in this matter. On December 6, 2005, the
Board issued an Order Remanding Proceedings in which it stated that it was
satisfied that Judge Edelman “conducted the hearing impartially and in an
appropriately judicial manner, and we do not suggest that the judge’s findings
were in error,” but decided that remand to a different judge was required
because Judge Edelman’s copying of extensive portions of the briefs filed by
the General Counsel and the Union gave the appearance of partiality and
suggested that he failed to conduct an independent analysis of the case’s
underlying facts and legal issues. 345 NLRB No. 111.
The Board’s Order
directed that the new judge review the record, issue a reasoned decision, and
reopen the record only if necessary. The Board stated that the new judge “may
rely on Judge Edelman’s demeanor-based credibility determinations unless they
are inconsistent with the weight of the evidence. If inconsistent with the
weight of the evidence, the new judge may seek to resolve such conflicts by:
one, considering the weight of the respective evidence, established or admitted
facts, inherent probabilities, and reasonable inferences which may be drawn
from the record as a whole [citations omitted] or two, in his/her discretion,
reconvene the hearing and recall witnesses for further testimony. In so doing,
the new judge will have the authority to make his/her own demeanor-based
credibility findings.”1
The Board remanded
this case to Chief Administrative Law Judge Robert A. Giannasi for reassignment
to a different judge, and on December 13, 2005, he reassigned it to me.2
Statement of the Case
On various dates in
November 1999 and February and April 2000, Bakery, Confectionary and Tobacco
Workers’ Union, Local 3 (Union) filed certain charges, and during the course of
the hearing, in July and September 2000, Lorenzo Macua, an individual, and
Cabrilio Flores, an individual, respectively, filed certain charges against
J.J. Cassone Bakery, Inc. (Respondent). Based on the above charges, complaints
were issued on February 22, May 18, and October 19, 2000, against the Respondent,
and the cases were consolidated for hearing.
The complaints,
which were amended at the hearing, allege essentially that the Respondent (a)
threatened employees with loss of benefits, loss of pension benefits, closure
of the facility for 3 months, and with discharge if the Union won the election;
(b) interrogated employees concerning their union support, their union activities,
their union membership and the union membership of other employees; (c)
threatened employees with discharge if they supported the Union; (d) threatened
employees with unspecified reprisals because they supported the Union; (e)
interrogated employees about their union sympathies and about their support for
the Union in the upcoming union election; (f) harassed employees because they
engaged in union activities; (g) created the impression among employees that
their union activities were under surveillance by the Respondent; (h)
threatened its employees with unspecified reprisals because they engaged in
union activities; (i) promised benefits to its employees in order to dissuade
them from supporting the Union; and (j) informed its employees that it would be
futile for them to select the Union as their bargaining representative.
The complaints
further allege that the Respondent discharged its employee Salvador Concepcion
because he engaged in concerted activities, and to discourage other employees
from engaging in such activities. The complaints also allege that the
Respondent suspended employee Cesar Calderon for 3 days and then discharged
him, suspended employee Adan Aguilar for an indefinite period of time and then
discharged him, suspended employees Cabrilio Flores and Roberto Lostaunau for
three days, and discharged employee Jose Mario Castro, because they joined and
assisted the Union and to discourage other employees from doing the same. The
complaint which was issued during the hearing alleged the unlawful suspension
and discharge of employee Cabrilio Flores, and the unlawful discharge of
employee Lorenzo Macua because of their activities in behalf of the
The Respondent’s
answers denied the material allegations of the complaints.
The
On the entire record,3 I make the following
Findings of Fact
i. jurisdiction
The Respondent, a
ii. the alleged unfair labor practices
A. The Respondent’s Organization and Background
The Respondent is a
family-owned bakery which was begun in 1910. Its current owners and
shareholders are “Rocky” Thomas Cassone and his sister, Mary Lou Cassone. Its
building comprises about 110,000 square feet and is situated on 3 acres. There
is a basement and a main floor which contain the ovens and packaging areas, the
truck bays are located on the main floor, and there is a second floor office
level. A retail store is situated on the main level. Respondent’s facility operates
on a 24-hour per day, 7-day per week schedule.
The Respondent
employs individuals who have been stipulated to be statutory supervisors. They
are Abey Abraham, Moises Contreras, William Cranisky, David Locke, Anthony
(Tony) Sena, Tony Venegas, and Aurelio Viegas (at some point after he assumed
Abraham’s duties). The admitted supervisors such as Abraham, Locke, Sena, and
Venegas wore a white shirt and blue pants.
The Respondent also
employs leadmen who report to the supervisors set forth above. The complaint
alleges, and the answer denies, that the leadmen are statutory supervisors and
agents. The leadmen at issue are Jon Cassone, a second cousin of Rocky and Mary
Lou Cassone, Guillermo Serra, and Viegas, prior to his assumption of Abraham’s
duties. Those leadmen wore a green shirt and green pants. Production and
shipping employees wore a white shirt and white pants.
B. Credibility
The Board’s Order
Remanding stated that I may rely on Judge Edelman’s demeanor-based credibility
determinations unless they are inconsistent with the weight of the evidence.
Such determinations may be based on “nervousness of the witness,
self-contradiction and evasiveness.” Atlantic
Veal & Lamb, Inc., 342 NLRB 418, 421 (2004).
Judge Edelman made
certain demeanor-based credibility determinations.4
After a careful review of the record, I find that Judge Edelman’s
demeanor-based credibility determinations, with the exception of his
credibility determination as to
In addition to the
demeanor-based credibility determinations, which I rely on, the credibility
determinations I have made are based on the weight of the respective evidence,
established and admitted facts, inherent probabilities, and reasonable
inferences drawn from the record as a whole. In making such determinations, however,
I have discredited
C. The Supervisory or Agency Status of the Leadmen
1. The facts
The complaint
alleges that the leadmen are supervisors and/or agents of the Respondent. The
Respondent asserts that they are neither.
David Locke, who
has been the Respondent’s general manager for 13 years, testified concerning
the duties and authority of the leadmen who work in the packing and
distribution areas, there being no leadmen in the oven area. He stated that the
leadman is responsible for the line he works on. For example, he is responsible
for the proper loading of the trucks, and must ensure that the product is
distributed in the proper way by checking that the orders are filled properly.
Locke testified that there were three leadmen working at night, each of whom
was responsible for 7 to 10 employees. The leadman also receives papers from
the office which set forth: (a) the total order, (b) how much product should go
to which specific customers, and (c) the pricing and date code numbers for the
product being manufactured. The leadman’s responsibility is to ensure that the
bread is of the proper quality, and that, pursuant to the order sheets it is
packaged in the proper wrapping, the proper pricing codes and dates are placed
on the package, and that the orders were filled properly. He must report to the
supervisor any shortages, overages, quality problems, or employee problems,
such as an absent worker or an employee who refused an order. If a package
contains fewer products than ordered, the leadman inserts the additional
product. Specifically, the leadman could tell an employee to increase his work
speed. However, the leadman could not create a confrontation with employees,
but instead must report any employee-related problem to his supervisor.
Depending on the job being performed, a new employee may be trained by the
leadman.
Locke stated that
employees are acquainted with their jobs and do not require daily instruction
regarding how to do their jobs, inasmuch as they work on the same machine each
day. The leadman receives instructions from the supervisor which he
communicates to the employees on the packing line. For example, if more
employees are needed in a different area, the supervisor asks the leadman to
transfer the worker.
Supervisor Anthony
Sena testified that he is the night manager in charge of the bakery and its 100
to 200 employees employed in the evening. He stated that leadmen such as Serra
are in charge of and “run” their own departments, making certain that
production is done timely and properly. He expects the leadmen to act on their
own regarding moving employees from one machine to another to cover areas that
are short-handed, and starting and stopping production due to a lack of
employees or a machine breakdown. But if an issue arises concerning insubordination,
or that an employee is not working properly or fighting, the leadman should
contact Sena immediately.
Sena also testified
that if an employee has to leave before his shift ends, the leadman may permit
him to leave, and then tells Sena later. However, the leadman must find a
replacement for that employee. Sena testified that in his absence on Friday or
Saturday nights, he expects the leadmen to assume even greater responsibilities
by being more vigilant as to their areas.
a. Guillermo Serra
Serra is a
long-term employee who was a leadman in the packaging department where he
worked on a packaging machine with seven other employees. He reported to
Supervisors Sena, Viegas, and Locke. When working on the packaging machine, he
performed the same work as the employees.
Serra testified
that he did not possess any of the statutory duties or authority of a
supervisor. However, he stated that occasionally a coworker would tell him that
he would be late the following day, and he reports that information to
Supervisor Sena. If an employee does not come to work, he reports that fact to
Locke and tells him that a replacement worker is needed. He stated that he has
no authority to resolve disputes between employees who work at his machine, but
as a coworker he advises them to stop. If the dispute continues, he notifies
his supervisor. Employees ask Serra if they can take a vacation at a certain
time. Serra transmits such requests to Sena who speaks to Locke, and both men
then make the decision.
Serra testified
that occasionally an employee on his shift became ill and went home. Serra
reported that to his supervisor and asked that another worker be assigned. He
added that the worker must wait until the supervisor arrives, and the supervisor
gives him permission to leave. Serra denied disciplining anyone or recommending
discipline. However, he testified to an incident in which a machine was not
functioning properly causing bread to fall on the floor. He told the workers
that they should stop the machine and pick up the bread. Rosa Macua refused to
pick up the bread. Serra told her that the entire team must pick up the bread.
She left her work area and went to the lunchroom, asking him to give her a
paper so that she could collect unemployment insurance. He told her to report
to the office. Later, he apologized, and she returned to work, but she left
work early, with Serra’s permission, because she did not feel well.
On January 11,
2000, Cabrilio Flores was given a letter signed by Mary Lou Cassone stating
that
I cannot credit
Serra’s testimony that he did not report
Serra stated that
he received the same benefits as others who worked on the machine he worked on.
However, he received annual bonuses from the Respondent which, according to the
payroll records, was $800 in 1999.
b. Jon Cassone
Jon Cassone is the second
cousin of Rocky and Mary Lou Cassone. He owns no stock in the Respondent.
Cassone identified himself as the leadman working on a seven-person packing and
slicing line, called (the Allied crew). He filled and checked the packaging
orders, and helped the drivers with their boxes and trays. He denied having any
supervisory authority, but stated that his authority consisted of ensuring that
the packaging was done properly. He often transferred employees from the
packing to the oven department when additional workers in the oven department
were needed. He did that at the standing request of Supervisor Contreras who
told him that if an oven employee is absent he should transfer a packing
department worker to the oven area. He also assigned employees to fill an order
and take it to the truck bay, but added that other employees also give such
orders. He is also responsible for setting up the packaging and slicing machines,
and arranging supplies and materials for the workers.
Cassone received
complaints about fellow employees from other workers, but told them to address
their complaints to Contreras or Locke. Inexplicably, he testified that when employees
on his line do not pay attention or engage in horseplay, he does not tell them
to return to work, but rather, he does their jobs. However, he shows new
employees the correct way of packing if they are not working properly. He or
other employees trained new workers in his crew, which consisted of a 30-minute
demonstration of how to insert the product into the packaging machine. He
stated that although he does not discipline employees if an employee was not
working properly he makes a “suggestion,” but not a recommendation to Contreras
that a worker be disciplined.
Cassone stated that
he is expected to notice problems on his line, and to report those problems to
Contreras. At times Cassone complained to Contreras that a worker was absent frequently
but no disciplinary action was taken against him, whereas Cassone was treated
more harshly. When overtime work is needed that Cassone and other workers will
perform, Cassone decides which other employees are asked, based on who he works
well with. Cassone informs Contreras of his choices and Contreras asks those
employees if they want to work overtime.
Cassone stated that
many workers called him a supervisor. Indeed, Biermann testified, as set forth
below, that when he was given a union card by Calderon he turned it over to
Cassone because he was a supervisor and manager.
Cassone received
bonuses of $300, 400, and 500 in 1997, 1998, and 1999, respectively. He stated
that he received the same benefits that other employees received.
Lostaunau told
Cassone that he had to go to the doctor and would be 10 to 15 minutes late. Cassone
replied that he would tell Abraham, and he did so. Cassone at first stated that
he gave Lostaunau permission to be late, but then stated that he did not give
him such permission. Calderon and Aguilar testified that when Calderon reported
to Viegas a threat made by Jon Cassone to Aguilar, discussed below, Viegas said
that Cassone would not listen to Viegas, as they are both supervisors, and that
he should report it to Mary Lou Cassone.
Antonio Castaneda
testified that he worked with Jon Cassone on Saturdays, and that Cassone told
him to report to work at 1 p.m., but that if he finished work at 3 a.m., and an
oven employee was absent, Cassone would ask him to work on the ovens until 4 a.m.,
and he would do so. In addition, when he was hired in May 1997, Castaneda was
told by Viegas that as a new worker he had to obey Cassone, Lemus, and Abraham
because they wore green uniforms. Cassone admitted that he worked with
Castaneda on Saturdays, but denied telling him to report to work at 1 p.m. that
day.
It must also be
noted that Jon Cassone gave Mary Lou Cassone the two union cards that he
obtained from employee William Biermann. Accordingly, Jon Cassone followed the
Respondent’s instruction, below, that a “management representative” should “turn
in any union literature found around the premises.” Accordingly, Jon Cassone
was considered a “management representative” in fulfilling that responsibility.
c. Aurelio Viegas
Viegas was a
leadman until Supervisor Abraham was fired. Sena stated that following Abraham’s
discharge in November 1999 Viegas was in training to become a supervisor and
was actually appointed in January 2000, but in fact Viegas was performing
Abraham’s duties in December 1999, and being evaluated on his performance.
Viegas stated that he was promoted in February 2000. He was paid a weekly
salary because, according to Rocky Cassone, when he was hired he asked for a
certain amount of money. Other stipulated supervisors were also paid weekly
salaries except Tony Venegas who received an hourly rate. Viegas received
bonuses of $300 and $400 in 1998 and 1999, respectively.
Prior to his
promotion to supervisor, Viegas worked was a leadman and was responsible for
his bread line which consisted of seven employees. His duties consisted of
receiving orders from the office and telling the employees the amount of
product needed to be baked and packaged, and ensuring that those orders were
complete by counting the amount of product going into each package, and
counting each package. If fewer amounts of bread were baked than orders
received, he baked more bread, but reported it to Abraham. If too much bread
was baked, he would package it for another order. He also made certain that the
packages were taken to the delivery trucks.
Viegas denied that
he possessed any statutory supervisory authority, and denied writing any
warning letters to workers, stating that if there was a problem with production
he would report it to his supervisor. However, on October 27, 1999, he issued a
written “corrective action report” to Calderon for speaking to other employees
while working, and not working properly.
Viegas testified
that, when necessary, he could move an employee from one line to another with
Abraham’s authorization, and that if an employee was late or absent he could
not replace that worker on his own if Abraham was present, but could obtain a
substitute on his own if Abraham was not present.
Aguilar, who worked
on the ovens, testified that Viegas told him the quantity of bread that had to
be baked, and when the bread was not ready to be baked he told the workers to
work in the packing area. Viegas transferred him about two or three times per
week. Macua stated that he saw Viegas tell employees working on the packaging
machine that their work was not done properly and they should be more careful.
Calderon stated
that prior to Abraham’s discharge, Viegas directed the workers, telling them
that the bread was too short or too long, and ordering them to make it shorter
or longer. He showed Calderon how to insert the bread in the packing machine.
When Calderon heard that Abraham had been fired, he told Viegas that he heard
that he would be assuming Abraham’s position. Viegas agreed, saying that he was
told to do Abraham’s job.
David Locke, the
Respondent’s general manager, testified that when Abraham, the night
supervisor, was absent from work, his responsibilities were assumed by a “consortium
of leadmen” with Night Supervisor Tony Sena making the management decisions.
Such night leadmen included Viegas. Locke further stated that when Abraham was
terminated in November 1999, there was “quite a void,” which was handled by
Sena and Locke, although Locke was not present at night. As Locke described
Viegas’ duties, he acted, in effect, as an acting supervisor during his
training. Sena and Locke asked Viegas for his opinion and recommendations concerning
how he would handle certain situations. If Sena and Locke agreed, the matter
would be handled as Viegas recommended. Viegas was training for Abraham’s
supervisory position during the 2-to 3-month period from November 1999 to
January or February 2000, Viegas continued functioning as leadman and was not
given all of Abraham’s duties and responsibilities, but he had some of his
responsibilities. Sena, however, continued to make management decisions.
2.
Discussion
In Mid-South Drywall Co., 339 NLRB 480 (2003):
It is well established that where an employer places a rank-and-file employee in a position in which employees would reasonably believe that the employee speaks on behalf of management, the Respondent has vested that employee with apparent authority to act as the Respondent’s agent, and the employee’s actions are attributable to the Respondent. The record is clear that the leadmen were not statutory supervisors. They did not have the authority to, and did not in fact hire, fire, suspend, promote, or recommend those actions.
The record is also
clear, however, that the leadmen are agents of the Respondent. Thus, although
they performed manual work, they were responsible for the line they worked on,
and ensured that the bread was baked properly and timely by the seven employees
they worked with on their line. They received production orders from the office
and instructions from the supervisors which they transmitted to the employees,
and made sure that orders were filled properly and packaged appropriately. The
leadman trains new employees, and could direct an employee to work faster and
pick up bread, and advises them to cease an argument with a coworker.
The leadman moves
employees from one machine to another to cover areas that are short-handed.
They permit an employee to leave early or come in late. The leadman reports production
and employee problems, absences and vacation requests to the supervisor, and
receives complaints from employees on their line about other workers. Viegas,
when a leadman, assumed with others, certain of Supervisor Abraham’s responsibilities
when he was absent.
With respect to
discipline, leadman Viegas issued a corrective action report to Calderon. Serra
criticized
Cassone also
selected which employees should work overtime, and although he does not direct
them to work overtime, the supervisor follows his selection. The production
workers are paid by the hour and receive no bonuses. The leadmen as a rule are
salaried and receive annual bonuses. Their uniforms, which are green, are
distinct from that of the production workers, which are white. The employees
refer to the leadmen as supervisors. Mid-South
Drywall Co., above.
In finding that
leadmen were agents in Rainbow Painting,
330 NLRB 972, 987 (2000), the Board noted that the leadmen, as here, were
responsible for insuring that the work was performed according to the employer’s
standards, and had the authority to criticize employees’ work performance. In
addition, in Poly-America, Inc., 328
NLRB 667 (1999), the leadmen, as here, acted as conduits in relaying to the
employees directions from the employer regarding production and other matters.
Similarly, in Waste Stream Management, 315 NLRB 1099,
1122 (1994), the employees found to be agents assigned work, saw that it was
done properly and timely, answered employee questions when they could and
checked with the supervisor when they could not.
In D&F Industries, 339 NLRB 618, 619
(2003), as here, the employees found to be agents relayed to the supervisor
rules infractions and when asked, told him about employee performance, and
relayed to management employee problems and complaints. They “moved employees
from one production line to another as needed to respond to staffing shortages
or during product changes on a line.” They also authorized employees to leave
work early or take time off in the case of an emergency or illness. Also,
similar to the instant case, the agents had to ensure that the packaging
process operated on schedule and that the employees worked productively, made
sure that the machines functioned properly, that production lines were adequately
staffed and supplied, and that orders were filled appropriately.
As set forth above,
the record is quite clear, and I find that Guillermo Serra, Jon Cassone, and
Aurelio Viegas were the Respondent’s agents, and that statements by them are
attributable to the Respondent. Mid-South
Drywall, above. By placing the leadmen in a position where they are in
charge of a line and must ensure the quality and production of the product
manufactured, they possess the authority to also enforce that the employee on
that line work effectively. Accordingly, the employees would reasonably believe
that based on the leadman’s position in charge of the line in which they work,
and through whom they are given their orders and instructions, the leadmen act
in behalf of management and thereby speak in behalf of it.
D. The Organizing Campaign and the Respondent’s Knowledge Thereof
The
Cesar Calderon, a
paid union organizer, became employed on August 4, 1999,5 with the Respondent for the purpose of
organizing its workers. The campaign began in the first week of September 1999,
when a group of employees formed an organizing committee. Calderon distributed
about 30 authorization cards to other workers with instructions that they
solicit their coworkers.
Rocky Cassone was
admittedly told in September by certain employees that Calderon solicited them
to support the
On September 8,
Rocky Cassone issued a letter to all employees advising them as to what to say
when asked to sign a card. On September 15, he wrote another letter advising
them that the
In September,
counsel for the Respondent gave Rocky Cassone a five-page document containing “do’s”
and “don’ts” concerning their behavior during the campaign. The document instructed
its supervisors that they should not promise, threaten or interrogate
employees, or discriminate against them because of their union activities. Also
included in the document is the direction that “management representative [sic]
should pass up the line any items of employee dissatisfaction and to turn in any union literature found around the
premises” (emphasis in original), and the following:
6. In any campaign where the issue is “union or not?” you should not be “noncommittal.” Even at the risk of being over-zealous and even if innocently you should commit an unfair labor practice, in the long run it will work out better if you take a stand. When employees are on the fence as far as how they will vote, the personal feelings of their supervisor for or against the issue is often determinative. When those representing the company appear to be in doubt and standoffish, the employees likely will conclude that the company doesn’t care how they vote. The employees may then vote for the side that appears most interested and, of course, most persuasive.
On October 27, Mary
Lou Cassone wrote to remind employees about the Respondent’s no-solicitation/no-distribution
policy—“people should not be bothering you while you are working and you should
not be interfering with others while they are working.”
The
On November 13, the Union sent a letter to the Respondent
which it received, listing the names of 18 employees as the
E. The Alleged Interference with Employee Rights
These alleged
violations will be discussed in alphabetical order by the name of the leadman
who committed the violations. In making these findings, I particularly note
that the Respondent’s written instructions to its supervisors urged them to unequivocally
state their position regarding the
1. Jon
Cassone
Cassone testified
that he first became aware of the
Aguilar, an active union
supporter, testified that in the first week in November 1999 Cassone asked if
he was a friend of Cesar Calderon. Aguilar answered that he was and questioned
the inquiry. Cassone replied that, “Cesar Calderon’s friends are not my
friends. I think, it seems to me that you’re also involved in the union. You’ll
see what’s going to happen to you guys.”
Castro stated that
on about November 7 he was on a break in the lunchroom with 13 or 14 workers
when Jon Cassone entered and shouted that the
Calderon testified
about an incident on November 1 involving employee Salvador Concepcion and
Supervisor Abraham, in which
Thereafter, on
November 11, Calderon made a complaint of harassment to the local police
department, which issued a written report, essentially quoting the above threat
by Cassone, as described by Calderon. Cassone denied that he threatened
Calderon as set forth above, and also stated that Calderon told him that “if we
get Abraham fired or out of here we’ll back off the union.”
Cassone testified
that he wanted to see Calderon discharged because he was angry with him for
bringing in the Union, and also because he sought to convince Cassone’s wife to
join the
Cassone testified
inconsistently that he did not believe that Calderon was hurting his family by
bringing a union into the shop, but believed that Calderon was hurting Rocky
and Mary Lou as his family, and was also hurting the employees who had worked
there for more than 20 years.
Thereafter,
Calderon was discharged and immediately asked Aguilar to accompany him to his
locker. Aguilar did so. Calderon testified that while he was leaving the
facility following his discharge on November 12, Jon Cassone, who was admittedly
with him at the time, told him “just remember, try to bring the union in here;
you are f–king with my family and you are f–king with me and you are going to
see what’s going to happen to you again.” After Aguilar returned to work that
day, Jon Cassone approached him and said, “[Y]ou are also involved in the union
and . . . the same thing that happened to Cesar Calderon is going to happen to
you.” Calderon filed a report with the local police department, alleging that
Cassone and Locke “attempted to intimidate him by using foul language and
telling him that he should watch out if he attempted to start his labor union
at this location.” Cassone denied threatening Aguilar.
Employee Roberto
Lostaunau testified that on November 11 as he emerged from the bathroom, Jon
Cassone said, “You, Peruvian, you’re a union.” Lostaunau replied, “[Y]es. I am
union” whereupon Cassone said, “[N]o union here, no, union to the street. If
you vote for the union and the union comes in, we know you have a wife and
three daughters and that your wife is not working; if the union comes in you
are going to be out . . . we know how to silence those that are in the union.
We know how to silence you.” Cassone denied threatening Lostaunau in this
manner.
I find first that
Jon Cassone made the comments alleged as unlawful, as set forth above. He
admittedly bore animus toward the Union, he resented Calderon, and reported his
union activities to his superiors, and wanted to see him discharged because he
brought in the
I find particularly
believable Calderon’s testimony that Cassone told him that since Abraham was
fired, he should “back off the idea of bringing the union in.” Apparently,
Cassone believed that Abraham’s discharge would cause the union drive to be
withdrawn, and believably urged that Calderon should cease his campaigning.
Obviously, Calderon did not view Abraham’s departure as a reason to halt the
effort. Cassone’s testimony, therefore, that Calderon suggested that if Abraham
was discharged he would “back off the union” is totally unbelievable. Calderon
was brought in to organize employees into the
I, accordingly, find that