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,
River Ranch Fresh Foods, LLC and General Teamsters, Warehousemen and Helpers
September 28, 2007
DECISION AND ORDER
By Members Liebman, Schaumber, and Kirsanow
On January 8, 2004, Administrative Law Judge John J. McCarrick issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief, 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,2 and conclusions only to the extent consistent with this Decision and Order.3
The Respondent excepts to the judge’s finding that it violated Section 8(a)(3) of the Act by terminating employee Eduardo Moran. For the reasons set forth below, we find merit in those exceptions and reverse the judge’s finding of the violation.
The
Respondent grows and processes vegetables.
The Respondent began operating at its
The
Union has represented the production and maintenance employees at the
Eduardo
Moran worked as a mechanic in the maintenance department and was covered by the
60-day probationary period in the successor agreement. The Respondent discharged Moran and two other
maintenance employees on August 16, roughly 2 weeks before the end of their
probationary periods.5 The issue here is whether
Moran’s discharge during the probationary period was for a nondiscriminatory reason.
Applying a Wright Line6 analysis, the judge found that the Respondent violated Section 8(a)(3) by firing Moran. The judge concluded that the General Counsel satisfied his initial burden of proving that the discharge was unlawfully motivated by showing that Moran engaged in union activities, that the Respondent was aware of his activities, and that the Respondent harbored animus toward Moran’s union activities as evidenced by five undisputed 8(a)(1) violations involving Maintenance Supervisor Juan Cardoso.7 The judge also found the timing of Moran’s termination to be suspect.8
The judge then considered whether the Respondent satisfied its Wright Line rebuttal burden of establishing that it would have taken the same action even absent Moran’s protected conduct. The judge rejected the Respondent’s contention that Moran was terminated for failing to successfully complete his probationary period because of his poor work performance. Having found that the Respondent’s witnesses’ stated reasons for terminating Moran were inconsistent, the judge found them to be pretextual, and it was on this basis that he concluded that the true reason for the discharge was that Moran “talked to the Union and to employees about the Union.”9
Central to the judge’s conclusion that the Respondent’s proffered reasons for Moran’s termination were pretextual were two explicit findings: first, that Carolyn Humphreys, Respondent’s vice president of human resources, testified that “talking too much” was the only reason for the termination, and, second, that Humphreys’ testimony was inconsistent with the reasons for terminating Moran testified to by Maintenance Manager Gary Elk. We disagree with those findings. Viewed in context, the testimony regarding the reasons for Moran’s discharge is not inconsistent. Since it is not inconsistent, the judge’s finding based thereon—that the Respondent’s reasons for the discharge were pretextual—fails, and the validity of the Respondent’s proffered reasons for discharging Moran must be reexamined.
As an initial matter, Humphreys did not in fact testify that “talking too much” was the only reason for Moran’s discharge. Counsel for the General Counsel questioned Humphreys at the hearing about her telephone conversation with Elk concerning employees who might not make it through the probationary period. When asked what Elk said about Moran, Humphreys testified: “He said, while technically [Moran] may be a good mechanic, he spends far too much time talking on the job and not getting the work done” (emphasis added).10 Thus, contrary to the judge, the reason for discharging Moran that Humphreys testified Elk gave her was not simply that Moran was “talking too much,” but that because of his excessive talking Moran was “not getting the work done.” Significantly, Elk’s testimony about the telephone conversation is substantially the same. Elk testified that he told Humphreys: “As far as Moran, his basic work performance I think is what I mentioned to her. The guy spending more time talking than he is working” (emphasis added).
Further, in finding that Humphreys and Elk gave inconsistent reasons for the discharge, the judge took portions of Elk’s testimony out of context or otherwise distorted it. In this regard, the judge found that Elk testified that Moran did not know how to repair hoists. Elk did not so testify. Rather, consistent with what he told Humphreys, Elk testified that Moran took twice as long to rebuild a hoist “because he was basically screwing around in the shop and not doing his job.” The judge also found that Elk contradicted what he told Humphreys by testifying that Moran was “not a good mechanic” because “he was not seeking information from more experienced mechanics” and “was not reading instructional manuals.” But Elk was not at that point testifying about his reason for discharging Moran. Rather, Elk was responding to a question about whether Moran was qualified for promotion to a position that demanded more skills and greater knowledge of the different equipment maintenance requirements. Elk’s reasons for considering Moran unqualified for promotion to a more demanding position are not inconsistent with his assessment of Moran as “technically . . . a good mechanic” in his then-current position.11
Finally, we disagree with the judge’s finding that there
was an inconsistency between Humphreys’ testimony as to what Elk told her and
what Elk told Respondent’s then vice president of logistics and processing,
Dave Robinson, in a conversation on August 16, the day Moran was
discharged. During that conversation,
Elk referred to an earlier warning for a “no-call, no-show” by Moran and said
that Moran “hadn’t proved himself above and beyond his lack of overall
performance from that warning.”12 First, the
“no-call, no-show” was not itself asserted as a reason for Moran’s discharge
and therefore we need not consider it here. In any event, we note that an employer may
have more than one reason for a discharge, and the mere fact that every reason
is not recited each and every time its agents discuss them does not equate to
the sort of after-the-fact shifting of reasons that may be indicative of
pretext.13 Second, there is no inconsistency between Elk’s
statement to Robinson that Moran “hadn’t proved himself above and beyond his
lack of overall performance” and Humphreys’ testimony that Elk told her that “while
technically [Moran] may be a good mechanic, he spends far too much time talking
on the job and not getting the work done.”14 Elk’s statement to Robinson is simply
another, more generalized way of characterizing Moran’s inadequate performance,
which Humphreys and Elk more specifically and consistently described as talking
too much and working too little.
The Respondent’s witnesses did not, therefore, give inconsistent reasons for Moran’s discharge. Elk’s reason did not vary from what he told Humphreys: Moran was not performing his work. Thus, contrary to the judge, we find that the Respondent did not proffer pretextual reasons for discharging Moran.
We further find that the Respondent’s proffered reasons for discharging Moran satisfied its rebuttal burden under Wright Line. In Elk’s opinion, Moran was not performing his work. The judge did not discredit Elk’s testimony in this regard.15 No evidence was introduced to contradict Elk’s assessment of Moran’s performance. Nor did any evidence establish that the Respondent engaged in disparate treatment by discharging Moran and retaining other employees with comparable performance deficiencies. Thus, the Respondent’s uncontradicted and consistent testimony, which the judge did not discredit, was that Moran was discharged because he was talking too much and not getting the work done.16
In sum, assuming that the General Counsel met his initial
burden under Wright Line of showing
that Moran’s union activity was a motivating factor in his discharge, we find
that the Respondent met its burden on rebuttal of showing that it would have
discharged Moran even in the absence of that activity.17
As noted above, the Respondent could discharge a probationary employee
for any nondiscriminatory reason.18 We find that this is what the Respondent did
here. Accordingly, we reverse the judge’s
finding that the Respondent violated Section 8(a)(3) by discharging Moran.19
ORDER
The National Labor Relations Board orders that the
Respondent, River Ranch Fresh Foods, LLC,
1. Cease and desist from
(a) Coercively interrogating employees about union support or union activities.
(b) Prohibiting employees from talking about the
(c) Threatening employees with discipline or other adverse
consequences for supporting the
(d) Creating the impression that employees’ union activities are under surveillance.
(e) 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 after service by the Region, post at its
facility in
(b) 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,
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 coercively question any employee about union support or union activities for General Teamsters, Warehousemen and Helpers Union, Local 890, IBT, or any other union.
We will not prohibit employees from talking about the union or with union agents.
We will not threaten employees with discipline or other adverse consequences for supporting the union.
We will not create the impression that employees’ union activities are under surveillance.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above, which are guaranteed you by Section 7 of the Act.
River Ranch Fresh Foods, LLC
Michelle Smith, Esq .for the General Counsel.
Patrick
Jordan, Esq. (Jordan Law Group, of
Michael
Nelson, Esq. (Beeson, Tayer & Bodine), of
DECISION
Statement of the Case
John J. McCarrick, Administrative Law Judge. This case was tried in Salinas, California, May 20-22, June 25-27, and August 13-15, 2003, upon General Counsel’s complaint[1] that alleged River Ranch Fresh Foods, LLC (the Respondent) violated Section 8(a)(1) and (3) of the Act by interrogating employees about the union activities of another employee, by creating the impression that union activities were under surveillance, by threatening an employee by saying that he could get into trouble for speaking with a union representative, by interrogating employees about their union sympathies, by threatening employees with loss of benefits, by threatening discipline for talking to union representatives and by discharging Jose Rocha, Eduardo Moran, and Lorenzo Hernandez because of union or protected-concerted activities. The Respondent timely denied any wrongdoing. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the parties, I make the following
Findings of Fact
i. jurisdiction
The Respondent, a
ii. the issues
1. Did Respondent violate Section 8(a)(1) of the Act by:
a. Interrogating employees in May and late July 2002 about the union activity of another employee?
b. Creating the impression in May 2002 that employees’ union activities were being kept under surveillance?
c. Threatening an employee with reprisal in May 2002 for talking to a Union representative?
d. Threatening an employee with reprisal in June 2002 for talking to a Union representative?
e. Creating the impression that an employee’s union activity was under surveillance in June 2002?
f. Threatening an employee with a warning for talking to
the
g. Threatening an employee with a warning for talking to a Union representative in late June 2002?
h. Threatening an employee with reprisal for talking to
the
i. Threatening an employee with reprisal for talking to
the
j. Interrogating employees on August 7 or 8, 2002, about the union activity of another employee?
k. Threatening an employee on August 7 or 8, 2002 that the employee could get himself into trouble for speaking with a Union representative?
l. Telling an employee on August 12, 2002 he could be
disciplined for talking with the
m. Interrogating employees on August 12, 2002 about their union sympathies?
n. Threatening employees on August 12, 2002 with loss of
benefits because of their support for the
2. Did Respondent violate Section 8(a)(1) and (3) of the Act by discharging Jose Rocha, Eduardo Moran and Lorenzo Hernandez because of their union or other protected-concerted activities?
iii. alleged unfair labor practices
A. The Facts
1. Introduction
The Respondent grows, washes, cuts, and packages vegetables
and lettuce at its facilities in
Cardoso supervises about eight technicians and eight mechanics that work two shifts. The first or day shift begins between 4:00-5:00 a.m. and ends between 1-3 p.m. The second or night shift begins between 1-3 p.m. and ends between 12-2 a.m. There were two lead mechanics in the maintenance department, Jose Rocha (Rocha) and Petronilo Solorzano (Solorzano).
Since July 30, 1993, the Union represented all full-time
and regular part-time production and maintenance employees employed by Inc. at
its pre-cut vegetable processing plants in Salinas and El Centro, California,
excluding harvesting employees, tube operators, product-haul truckdrivers,
outside clean-up employees, cooling and shipping dock employees, clerical
employees, guards, and supervisors as defined in the Act. ). In
addition, the
The Respondent set the initial terms and conditions of employment for the work force, including a probationary period of 60 days for mechanics and 90 days for all other employees including technicians. The collective-bargaining agreement provided that a probationary employee could be discharged for any reason.[5]
The Respondent and the
The parties stipulated that bargaining sessions occurred
on July 1 and August 7. At the July 1
meeting, the
Between bargaining sessions, on July 17 Robinson held a staff meeting with managers including Bean, Pauly and Elk in which he told them, “We have no union contract, so we do not allow meetings with union shop stewards.”[6]
By the end of the August 7 morning bargaining session the
only remaining issue was whether the technicians should be included in the
bargaining unit. When it became clear
that Respondent opposed the concept of including technicians in the bargaining
unit,
Twenty minutes after the Union left, Humphreys, Robinson,
Elk, and Cardoso called a meeting with four technicians in Robinson’s office to
advise the technicians that the
Later that day, Elk called technician Jeff Hudson (
On August 8 Elk held a meeting with technicians during
worktime. With Cardoso translating, Elk
told employees that “the company wanted to know who were the ones that wanted
the
a Eduardo Moran
Eduardo Moran (Moran) worked for both Respondent and Inc.
as a mechanic in the maintenance department since April 2001. Moran’s supervisors were Cardoso and
Elk. The maintenance department included
both mechanics and technicians, however only mechanics are represented by the
In the Fall of 2001, Moran had conversations with both Cardoso
and Elk where other mechanics were present.
Moran told both Cardoso and Elk that the mechanics wanted training to
improve their skills and wanted to discuss issues concerning the seasonal move
to
On about June 6, Moran received a written offer of employment
from the Respondent.[10] Ana Juarez[11]
(
After June 6, Moran spoke to union representatives several
times at the Respondent’s facility and learned that the
On June 18, at about 5 p.m., Moran told Elk that he would be absent for the rest of the night shift in order to see his doctor about his swollen knee. Moran told Elk he needed several days off and Elk gave his approval. On June 19, Moran faxed a doctor’s note[12] to Respondent and called both Cardoso and Elk’s offices and left messages that he would be out until June 23 or 24 due to his gouty knee. Moran returned to work on June 23. On June 25 Elk gave Moran a written warning[13] for failure to notify Respondent at least an hour before the start of his shift that he would be absent.
In July and August Moran had conversations with employees
about the
Humphreys testified that the only reason Moran was fired was for talking too much. Between August 9 and 15 Elk called Humphreys to get permission to fire Moran and told her that while technically Moran was a good mechanic, he spent far too much time talking on the job. Elk gave contradictory testimony that Moran was not a good mechanic because he was not seeking out information from more experienced mechanics and was not reading instruction manuals.[15] Elk also said that Moran did not know how to repair hoists. However, Cardoso said that by June Moran was no longer working on hoists. Moreover, Cardoso said he did not know Moran was having trouble repairing hoists until after August 16.
Elk also testified that he had two conversations with Robinson about terminating Moran. The first conversation was the third week of July. Elk told Robinson there were two employees who might not make it through probation, Moran and Rocha. The second conversation was the morning of August 16. Elk told Robinson that Hernandez was not worth keeping because of his attitude, that Moran wasn’t going to make it because of his no call-no show and because, “he hadn’t proved himself above and beyond.” Elk also said Rocha was a disappointment and wasn’t meeting expectations. Elk said, “at that point the decision was made to, I guess, do terminations that day in one fell swoop so that it wouldn’t extend out and create panic amongst the maintenance department.”
On August 16, Elk told Moran that he was being fired for failing to successfully complete his probationary period.[16] When Moran asked for a uUnion representative, an unknown man said he could not have a union representative since there was no contract. Moran was escorted from the Respondent’s facility by the unknown man and Juarez. Moran said he received no other discipline and received no complaints from Respondent or Inc. about his work performance.
b. Lorenzo Hernandez
Lorenzo Hernandez (Hernandez), also known by the nickname “Scorpion,” worked for both Respondent and Inc. since 1994. Hernandez became a technician in about 1999. Herndanez’ supervisors were Elk and Cardoso. Hernandez mainly serviced the Hayssen machines on the day shift in July and August.
In November 2001, Hernandez spoke with Cardoso after Moran had been fired. Cardoso told Hernandez that Moran had been fired and would not be back. Cardoso said “people who speak about politics won’t last long at work.”
In May Hernandez had a conversation with Cardoso. With Rocha, Guzman, and Rodriguez[17] present, Cardoso asked how long Moran had been speaking with the union representative. Cardoso said Moran is taking too many privileges and he could fuck him up. Hernandez replied that Moran was a union leader. Cardoso said he isn’t anything. Cardoso said I will wait a few minutes and that if he is there longer than his time for lunch, I will screw him up.[18] A month later, while in the lunchroom with Hernandez, Rocha, Rodriguez, Guzman, and Salazar, Cardoso said Moran shouldn’t have been talking to the union representative during work time and if Moran took too long he would screw him.
In June Hernandez
received an application for employment with Respondent from
In June Hernandez
spoke to three fellow technicians about organizing the
In early August,
Elk and Cardoso held a meeting during work time with the technicians. Cardoso translated for Elk who speaks little
Spanish. Elk asked who wanted the
During work time
about an hour later, Cardoso announced that there would be another meeting in
his office. Several technicians were
present with Cardoso and Hudson. Cardoso
left the office and
A few days before Hernandez’ termination on August 16, Cardoso asked Hernandez where Moran was because he was talking too much with the operators about the Union and that he was stirring up the water too much.
There was considerable testimony from the Respondent’s witnesses concerning Hernandez’ attitude.
Danny Jimenez, the Hayssen night supervisor said that he complained to Elk and Cardoso that technicians failed to respond to maintenance calls from Hayssen operators. In June and July, Jimenez told Cardoso his operators complained about Hernandez’ bad attitude. However, Jimenez said that after July Hernandez’ performance improved.
Jorge Manriquez was also a night-shift Hayssen supervisor. In June, July and August Manriquez complained to Bean about Hernandez’ performance. Manriquez said Hernandez was hostile to his operators and that he received frequent complaints from the operators about Hernandez’ abuse toward them. Several operators said they did not want to work with Hernandez.
Cardoso said that in June, July and August he received complaints from Danny Jimenez and Hayssen operators about Hernandez’ abuse and reported these complaints to Elk.
Bean said that in June, July ,and August his shift supervisors, Danny Jimenez, Oscar Rodriguez, and Jorge Manriquez complained about both Hernandez. They complained about Hernandez’ hostile, aggressive attitude toward their Hayssen operators. Bean said he relayed these complaints to Elk.
On August 16, Elk terminated Hernandez. The termination notice stated Hernandez was terminated for failure to meet the probationary period.[20] Before his termination, Hernandez had only one disciplinary action for being late in 2001.
c. Jose Rocha
Jose Rocha (Rocha) worked for both Respondent and Inc. since 1991 as a mechanic. Rocha had been a lead mechanic for about two years. As lead mechanic, Rocha performed the most difficult jobs and trained employees. Rocha worked on the first shift from about 5 a.m. to 3:30 p.m. in June, July, and August and his immediate supervisor was Cardoso. Cardoso said that by June he had removed most of Rocha’s lead duties and Rocha was only repairing equipment.
In late June
Cardoso was in the maintenance shop with Rocha, Cardoso told Rocha to, “call it
to Moran’s attention because it was during company time and he could get a
warning.” Moran had just been talking to
Union Representative Crescencio Diaz.
About a week later in early July when Moran was speaking to union
representatives in the cafeteria, Cardoso told Rocha to call it to Moran’s
attention he should not be talking to the
In late June,
Rocha spoke to employees in the maintenance shop and in the lunchroom about the
amount of per diem employees were getting for work in
In July mechanics complained that technicians were performing work normally done by mechanics. At a meeting in the maintenance shop with all technicians and mechanics present, Rocha complained to Cardoso that technicians were doing mechanic’s work. When Cardoso denied that technicians were taking away work, Rocha replied that technicians were taking hours of work away from mechanics.
The Respondent contends that Rocha was fired because he did not respond to service calls, disregarded safety issues and was a bad example for other employees.
In June, July and August Manriquez complained to Bean about Rocha’s performance. Manriquez said his operators were complaining about Rocha’s lack of timeliness in responding to their calls. Manriquez said he had to look for Rocha several times.
Bean said that in June, July and August his shift supervisors, Danny Jimenez, Oscar Rodriguez and Jorge Manriquez complained about Rocha. They complained about Rocha’s slow response to their service calls. Bean said he relayed these complaints to Elk.[21]
Pauly, Respondent’s Quality Assurance Manager, testified that the washer/flume, a piece of equipment used to wash lettuce and vegetables, is a critical control point, i.e., a point in the process where a consumer of Respondent’s product could be harmed. The flume trap in the washer is checked regularly to ensure that no foreign material has gotten into the product. When the washer/flume is serviced, old parts must be removed to prevent them from getting into the product.
On June 21, washers were found in two bags of salad and the production lines were shut down for 30–35 minutes. More washers were found at the end of the flume. During her investigation of this incident, Pauly learned that Rocha had most recently worked on the flume. When she confronted him, Rocha admitted he had worked on the flume and used washers like those found in the bags of salad. They went to the flume and found additional washers on the flume and on the floor. Rocha admitted he had not removed the loose washers from the flume.
In late July Pauly called Rocha because metal shards were found in the broccoli line. Rocha said he was unable to assist because he was busy.[22]
In August washers and a nut were found in room four where product is prepared. Pauly said that good manufacturing practice requirements (GMP), produced by the FDA, require that there be no foreign materials such as washers in the vicinity of product. These washers were found within five feet of the product. According to Elk, unidentified mechanics told him Rocha left the washers on the floor when he replaced a railing. Elk told Pauly he had assigned Rocha to remove the railing. While Rocha admitted that he removed and repaired railings as part of his duties, he denied leaving any hardware in the production area. There is no evidence that Rocha ever received a written warning for during his probationary period.
On August 16, Respondent terminated Rocha for failure to meet his probationary period.[23]
B. The Analysis
1. The 8(a)(1) allegations
The complaint sets forth four instances of 8(a)(1) conduct and in her brief counsel for the General Counsel argues that there are seven additional examples of 8(a)(1) conduct that are not alleged in the complaint.[24] The 8(a)(1) allegations discussed below in paragraphs a-d were contained in the complaint.
a. On an unknown date in May and late July 2002, Cardoso interrogated employees about the Union activity of another employee.
In evaluating
whether interrogation of employees concerning protected concerted activity
violates Section 8(a)(1) of the Act, the Board has considered the totality of
the circumstances. The Board considers whether under all the circumstances the
questioning at issue would reasonably tend to coerce the employee at whom it is
directed so that he or she would feel restrained from exercising rights
protected by Section 7 of the Act.
In Westwood Healthcare Center, supra at 939, the Board discussed the test to determine whether interrogation is unlawful. The Board stated in Westwood,
We agree with our dissenting colleague that the applicable test for determining whether the questioning of an employee constitutes an unlawful interrogation is the totality-of-the-circumstances test adopted by the Board in Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees Union Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), and adhered to by the Board for the past 15 years.16 We also agree that in analyzing alleged interrogations under the Rossmore House test, it is appropriate to consider what have come to be known as “the Bourne factors,” so named because they were first set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). Those factors are:
(1) The background, i.e. is there a history of employer hostility and discrimination?
(2) The nature of the information sought, e.g., did the interrogator appear to be seeking information on which to base taking action against individual employees?
(3) The identity of the questioner, i.e. how high was he in the company hierarchy?
(4) Place and method of interrogation, e.g. was employee called from work to the boss’s office? Was there an atmosphere of unnatural formality?
(5) Truthfulness of the reply.
In analyzing whether interrogation of employees concerning
protected concerted activity violates Section 8(a)(1) of the Act, the Board has
considered the totality of the circumstances. In the final analysis, our task
is to determine whether under all the circumstances the questioning at issue
would reasonably tend to coerce the employee at whom it is directed so that he
or she would feel restrained from exercising rights protected by Section 7 of
the Act. Westwood Health Care Center,
330 NLRB No. 141 [935], slip op. at page 7 [939] (2000) See also Rossmore House, 269 NLRB 1176, 1178 fn.
2 (1984). See
The record
reflects that in May Cardoso had a conversation with Hernandez with Rocha, Guzman and Rodriguez
present. Cardoso asked how long Moran
had been speaking with the Union representative. However, as discussed below, Cardoso’s
interrogation of Hernandez was part of a larger effort by Cardoso and Elk to discourage
employees from discussion union and other protected concerted activity. Thus,
there is evidence that Cardoso not only inquired about where Moran was but
warned employees not to speak to the Union or about the
Respondent contends that Cardoso, in warning Moran and
Rocha, was merely enforcing employer policy so that employees would be
productive and not engage in non work related activity during working
time. However, the evidence does not
support this argument. There is evidence
that other employees, including Cardoso, discussed non-work subjects on work
time. In this regard, Respondent
permitted
Under all of the circumstances, noting the numerous instances of threats and interrogations, I find that Cardoso’s May interrogation of employees about Moran’s Union activity violated Section 8(a)(1) of the Act.
There is no evidence that Cardoso interrogated an employee about the Union activity of another employee in July and I will dismiss that portion of the complaint.
b. On or about August 7 or 8, 2002, Cardoso interrogated employees about the Union activity of another employee and threatened that the employee could get himself into trouble for speaking with a Union representative.
There is no evidence that Cardoso interrogated employees
about other employee’s Union activities or threatened employees for speaking to
the
c. On or about August 12, 2002, Cardoso told an employee
he could be disciplined for talking with the
The basic test for
a violation of Section 8(a)(1) is whether under all the circumstances the
employer’s conduct reasonably tended to restrain, coerce, or interfere with
employees’ rights guaranteed by the Act. Mediplex
of
A few days before
Hernandez’ termination on August 16, Cardoso asked Hernandez where Moran was
because he was talking too much with the operators about the Union and that he
was stirring up the water too much. When
viewed in the totality of the circumstances, the clear implication behind Cardoso’s
statement that Moran was talking too much to the operators about the
d. On or about August 12, 2002, Elk interrogated employees
about their Union sympathies and threatened them with loss of benefits because
of their support for the
In general, it is
unlawful for an employer to inquire as to the union sentiments of its
employees. President Riverboat Casinos of
In NLRB v. Gissel Packing Co., 395 U.S. 575
(1969), when an employer makes
a prediction as to what effects unionization may have on its company, such a
prediction is lawful where it is “carefully phrased on the basis of objective
fact to convey an employer’s belief as to demonstrably probable consequences
beyond his control or to convey a management decision already arrived at to
close the plant in case of unionization.”
Gissel at 618.
On August 8 Elk
held a meeting with technicians during work time. With Cardoso translating, Elk told employees
that, “the company wanted to know who were the ones that wanted the
Elk’s
interrogation of employees as to which employees, “wanted the
Under Gissel,
it is the Respondent’s burden to show that Elk’s statement was justified by
objective evidence. See, e.g. , Schaumburg Hyundai, 318 NLRB 449, 450 (1995);
see also Zim’s Foodliner, Inc. v. NLRB,
495 F.2d 1131, 1137 (7th Cir, 1974) (finding that Gissel places a “severe burden” on employers
seeking to justify predictions concerning the consequences of unionization). Gissel requires more than a mere belief
to make such a prediction lawful, because “employees, who are particularly
sensitive to rumors of plant closings, take such hints as coercive threats
rather than honest forecasts.” Gissel at 619.
See also Turner Shoe Co., 249 NLRB
144, 146 (1980).
In this case Elk’s
prediction that employees could lose some benefits if they had a union was not
justified by any objective evidence beyond Elk’s mere belief and was not
protected speech but rather was designed to threaten and coerce employees so
that they would not exercise their Section 7 rights. Both Elk’s interrogation and threat that
employees would lose benefits violated Section 8(a)(1) of the Act.
Paragraphs e
through k involve the violations of Section 8(a)(1) of the Act alleged in
Counsel for the General Counsel’s brief and fully litigated at the hearing.
e. In May 2002, Cardoso threatened to “fuck up” Moran for talking to Union representative Reynoso.
During Cardoso’s
May interrogation of Hernandez about Moran speaking with the
In Beverly Health & Rehabilitation Services,
335 NLRB 635 (2001), the Board found an employer’s statement
that employees
who supported the Union were “going to get screwed” was coercive of employees’
rights and violated Section 8(a)(1) of the Act.
I find Cardoso’s statement, in the context of Moran speaking with the
Union, that he could “fuck him up” was designed to chill Moran’s Section 7
rights and violated Section 8(a)(1) of the Act.
f. In May 2002, Cardoso created the impression that Moran’s Union activities were under surveillance.
The Board’s test for determining whether an employer has created an impression of surveillance is whether the employee would reasonably assume from the statement in question that his union activities had been placed under surveillance. In United Charter Service, 306 NLRB 150 (1992), the Board held:
The Board does not require employees to attempt to keep
their activities secret before an employer can be found to have created an
unlawful impression of surveillance.... Further, the Board does not require
that an employer’s words on their face reveal that the employer acquired its
knowledge of the employee’s activities by unlawful means.
The Board further explained:
The idea behind finding ‘an impression of surveillance’ as a violation of Section 8(a)(1) of the Act is that employees should be free to participate in union organizing campaigns without the fear that members of management are peering over their shoulders, taking note of who is involved in union activities, and in what particular ways. Citing Flexsteel Industries, 311 NLRB 257 (1993). Tres Estrellas de Oro, 329 NLRB No. 3 [50], slip op. page 1 [50] (1999).
In the course of Cardoso’s May interrogation of Hernandez concerning Moran speaking with Union representatives, Cardoso said I will wait a few minutes and that if he is there longer than his time for lunch, I will screw him up. Cardoso’s clear implication to the employees was that he was going to wait and observe Moran’s Union activities. Such a statement would lead employees to reasonably believe that their and Moran’s Union activities were being observed and it violates Section 8(a)(1) of the Act.
g In June Cardoso threatened Moran and created the impression that his Union activities were under surveillance by telling Hernandez that Moran shouldn’t be talking to the Union representative during work time and that if Moran took too long he was “screwed.”
In June, while in the lunchroom with Hernandez, Rocha, Rodriguez, Guzman and Salazar, Cardoso said Moran shouldn’t have been talking to the Union representative during work time and if Moran took too long he would screw him. Like the statement Cardoso made in May, this statement created the reasonable impression that Cardoso had been observing Moran’s conversations with the Union representative and that there would be adverse consequences. Both statements violated Section 8(a)(1) of the Act. Beverly Health and Rehabilitation Services, Inc., 335 NLRB 635 (2001);Tres Estrellas de Oro, 329 NLRB 50, 50 (1999).
h. In June 2002, Cardoso threatened Rocha by telling him
that he could get a warning for talking to the
In mid-June Cardoso was in the maintenance shop with Rocha
and other mechanics. Cardoso told the
Rocha not to talk to the
i. In late June, Cardoso threatened Moran by telling Rocha to talk to Moran about talking to Union representative Diaz during company time and telling him he could get a warning.
The record In late June Cardoso was in the maintenance shop with Rocha, Cardoso told Rocha to call it to Moran’s attention “because it was during company time and he could get a warning.” Moran had just been talking to Union representative Crescencio Diaz.
Having found above that Cardoso had no legitimate basis for limiting Moran’s conversations with Union representatives, since only Union contact was prohibited, Cardoso’s statements violated Section 8(a)(1) of the Act. Bestway Trucking, Inc., 310 NLRB 651, 671 (1993); Q-1 Motor Express, 308 NLRB 1267, 1277 (1992).
j. In early July Cardoso threatened Rocha by telling him
not to talk to the
In early July when
Moran was speaking to Union representatives in the cafeteria, Cardoso told Rocha
to call it to Moran’s attention he should not be talking to the
k. In late July
Cardoso threatened Rocha by telling him not to talk to the
In late July in
the lunchroom Rocha and Moran were talking to operators about per diem
rates. Cardoso told Rocha not to talk
during work hours with operators about per diem. In Cardoso’s office in late July, Cardoso
told Rocha not to talk too much to the
1. The 8(a)(3) allegations
General Counsel contends that Respondent terminated Moran, Hernandez and Rocha because they engaged in union activities. Respondent argues that it terminated Moran, Hernandez and Rocha because they failed to complete their probationary period successfully.
Section 8(a)(3) of the Act prohibits employers from discriminating in regard to an employee’s, “tenure of employment . . . to encourage or discourage membership in any labor organization.”[25]
In 8(a)(3) cases
the employer’s motivation is frequently in issue, therefore the Board applies a
causation test to resolve such questions. Wright
Line, 251 NLRB 1083, 1088 (1980).
The Wright Line test requires
the General Counsel to make a prima facie showing sufficient to support an
inference that the employee’s protected conduct motivated the employer’s adverse
action. “The critical elements of
discrimination cases are protected activity known to the employer and hostility
toward the protected activity.” Western Plant, 322 NLRB 183, 194 (1996).
Although not conclusive, timing is usually a significant element in finding a
prima facie case of discrimination.
The General Counsel has the initial burden of establishing th