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,
Amersino Marketing Group, LLC, and Industrial Workers of the World. Cases 29–CA–27623, 29–CA–27624, and 29–CA–27808
November 19, 2007
DECISION AND ORDER
By Chairman Battista and Members Schaumber and
Kirsanow
On February 27, 2007, Administrative Law Judge Michael A. Rosas issued the attached decision. The General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed an answering 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 exceptions1 and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order.2
The judge found that the Respondent did not violate Section 8(a)(3) and (1) of the Act by terminating employee Eliezer Gallardo because he engaged in protected union activity. The judge found that the General Counsel failed to meet his initial burden, under Wright Line,3 of establishing that Gallardo’s protected conduct was a motivating factor in the Respondent’s decision to discharge him. Specifically, the judge found that Gallardo was terminated after he stated that he would no longer perform part of his job, and that there was no connection between this adverse action and Gallardo’s union activity. The General Counsel excepts, arguing that the Respondent’s conduct, which demonstrated animus towards Gallardo’s union activity, provoked Gallardo’s refusal to perform inventory work. For the following reasons, we find, in agreement with the judge, that Gallardo’s discharge was not unlawful.
Facts
On April 28, 2006,4
after a month of union activity,5 an
election was held among the Respondent’s employees. Gallardo served as the
On April 29, shortly after the workday had begun, Henry
Wang, the Respondent’s owner and president, called Gallardo into his office.
Wang asked Gallardo why he had not listed three pallets of garlic on the previous
day’s inventory. When Gallardo said he forgot, Wang swore at him and asked if
he had been asleep. Gallardo told Wang not to talk to him like that. Wang then
said he could not look at Gallardo “with good eyes after what had happened the
day before,” referring to Gallardo’s conduct as the
Gallardo then reminded Wang that he had previously asked to be relieved of the inventory work. At the time of Gallardo’s previous request, Wang had said that he would try to get someone else to do inventory. Now, however, he stated that he wanted Gallardo to continue doing it. He added, “if you can’t accept this job, I have no job for you here.” Gallardo responded that he would not do the inventory, and added that other employees would walk out if he no longer had a job there. Wang said, “Go ahead.” Gallardo then left Wang’s office and told other employees that Wang had terminated him. A few minutes later, Wang came out of his office and told Gallardo he was terminated.
As stated above, the judge found that the General Counsel failed to meet his initial burden, under Wright Line, because the General Counsel did not establish a connection between the termination and Gallardo’s protected activity. In his exceptions, the General Counsel argues that he met his initial burden because the evidence shows that the Respondent’s animus towards Gallardo’s protected union activity was a motivating factor in Wang’s decision to discharge him. The General Counsel further contends that the Respondent failed to establish that Gallardo would have been terminated in the absence of his union activity.
Specifically, the General Counsel argues that Wang made
unlawful statements that provoked Gallardo into refusing to perform inventory.
In support, the General Counsel notes the judge’s finding that Wang’s reaction
to the inventory mistake was pretextual. The General Counsel cites Board
precedent holding that an employer may not provoke an employee into committing
an indiscretion and then use that indiscretion as a pretext to discharge the
employee because of his union activities. See, e.g.,
Assuming arguendo that the General Counsel sustained his initial burden under Wright Line, we find that the Respondent met its rebuttal burden by showing that it legitimately terminated Gallardo for refusing to perform his assigned inventory work.
Analysis
It is axiomatic that an employer may lawfully take appropriate action, including discipline and discharge, to address an employee’s insubordination. Moody Chip Corp., 243 NLRB 265, 273 (1979) (discharge lawful because employee refused to work); Arduini Mfg. Corp., 153 NLRB 887, 903 (1965) (“[U]nion activity neither confers immunity from discipline by the employer nor guarantees the union member immunity from discharge for cause.”). Here, the record shows that Wang discharged Gallardo only after Gallardo’s insubordinate announcement that he would no longer perform one of his required duties—the inventory.
As noted above, prior to their confrontation, Gallardo had asked Wang to reassign this task to another employee. Wang said he would try to find someone else to do the work. He did not promise Gallardo that he would reassign the task. Thereafter, when the garlic pallet error came to light, Gallardo reminded Wang of his prior request. Wang denied the request and informed Gallardo that he must continue doing inventory.6 At that point, Gallardo angrily announced that he would no longer do inventory and walked out. Thus, it is clear that Gallardo acted in response to the Respondent’s lawful denial of his request to have the inventory duties reassigned.
Even assuming arguendo that Wang’s reprimand of Gallardo for the inventory mistake was a pretext, it did not provoke Gallardo’s refusal to perform the inventory work. That refusal was prompted by Wang’s denial of Gallardo’s prior request to reassign the work. It was at that point that Gallardo angrily announced that he would not perform the inventory work. Nor do the facts show that Gallardo was provoked by Wang’s statement that he could not look at Gallardo “with good eyes after what had happened the day before.” Rather, as noted above, Gallardo did not refuse to perform his job until after Wang denied his prior request for a change of work assignment. Significantly, it was Gallardo who raised the issue by reminding Wang about the prior request; had he not done so, the matter of work assignment would not have arisen.7
In contending that Wang unlawfully provoked Gallardo, the General Counsel cites cases that are clearly distinguishable. In each, the employer’s unlawful conduct provoked the employee misconduct. See generally Louisiana Council No. 17, AFSCME, supra, 250 NLRB at 886 (employee’s disparaging remarks, failure to show initiative, and failure to follow instructions provoked by unlawful suspension and transfer); Spartan Equipment Co., 297 NLRB 19 (1989) (employee’s false filing of criminal charge provoked by immediately preceding threat of job loss, threat of job loss for wife, threat of denial of future promotions, cursing, and wagging a finger in his face); Paradise Post, 297 NLRB 876 (1990) (employee’s leaving of job with headache provoked by argument over employer’s unlawful deduction of pay for time spent attending collective-bargaining sessions, and its refusal to remedy matter); Brunswick Food & Drug, 284 NLRB 663 (1987), enfd. mem. 859 F.2d 927 (11th Cir. 1988) (employee’s apology to customers for managerial conduct in “excited manner” was provoked by employer’s unlawful removal of union representatives from the premises); NLRB v. M&B Headware Co., 349 F.2d 170 (4th Cir. 1965) (employee’s threat of harm and rudeness to company official provoked by employer’s discriminatory transfer, discharge, and refusal to reinstate).
In the instant case, by contrast, the record indicates that Gallardo’s response was not to any unlawful conduct, but instead to the Respondent’s prior lawful refusal to relieve Gallardo of inventory duties. He did not get what he wanted, and essentially told his boss that he was helping himself by refusing to do his assigned work. Thus, even if one could characterize Gallardo as having been “provoked,” his insubordinate reaction was to Wang’s lawful directive to continue performing inventory work, unlike the cases cited by the General Counsel, where the employers’ unlawful conduct provoked the misconduct for which the employee was disciplined.
For these reasons, we find that the Respondent did not unlawfully provoke Gallardo’s refusal to do his job. Thus, the Respondent has shown that it would have discharged Gallardo even in the absence of his protected activity, because of his refusal to perform the inventory duties. Accordingly, we adopt the judge’s dismissal of this complaint allegation.
ORDER
The National Labor Relations Board adopts the recommended Order
of the administrative law judge and orders that the Respondent, Amersino
Marketing Group, LLC,
Dated,
Robert J. Battista, Chairman
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 threaten the futility of collective bargaining if you select the Industrial Workers of the World or any other union as your collective-bargaining representative.
We will not discharge or otherwise discriminate against any of you for supporting the Industrial Workers of the World or any other labor organization.
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 Manuel Lopez and Juan Antonio Rodriguez 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 Manuel Lopez and Juan Antonio Rodriguez 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 discharges of Manuel Lopez and Juan Antonio Rodriguez, and we will, within 3 days thereafter, notify each of them in writing that this has been done and that the discharges will not be used against them in any way.
Amersino Marketing Group, LLC
Marcia Adams, Esq., for the General Counsel.
Jeff Fox, Esq. (Wu & Kao), of
Stuart Lichten, Esq., for the Charging Party.
DECISION
Statement of the Case
Michael A. Rosas,
Administrative Law Judge. This case was tried in
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, the Charging Party, and the Respondent, I make the following
Findings of Fact
i. jurisdiction
The Respondent, a domestic corporation, has its principal
office and place of business in
ii. alleged unfair labor practices
A. Background
The Respondent is
a produce wholesaler in
The four discriminatees were employed by the Respondent at
various times. Gallardo had been around the longest. He was hired in May 2002 and had
several responsibilities. Gallardo operated a forklift, loaded and unloaded
trucks, and cleaned the cooler. Since 2004, Gallardo had also been required to
take daily inventory of merchandise in the warehouse. Diego Lezama was hired as
a warehouse driver in October 2005. Juan Antonio Rodriguez and Manuel Lopez worked as driver’s
helpers. Rodriguez was hired in November 2004; Lopez was hired in
September 2005.
B. Employees Initiate Union Activity
In mid-February 2006, Billy Randel and Burt Pickard, co-organizers for
the
On March 18, the Respondent terminated two employees, Rene Pulidos and
Manuel Lopez.[4] Later that day,
Gallardo, Lezama, and several other employees discussed the situation and
decided to call Randel for assistance. Lezama called Randel, told him Pulidos
and Lopez had been discharged, and that workers wanted them reinstated. Randel
suggested they meet before work on Monday morning, March 20.
At about 5:30 a.m. on March 20, Randall and Pickard met at a nearby
coffee shop with a group of employees, including Gallardo, Lezama, Rodriguez,
Lopez, and Pulidos. They each signed a petition requesting union representation.
The petitions were backdated to March 15. The group then decided to go the
facility and have Randel request that the Respondent recognize the
The union representatives and the employees arrived at the Respondent’s
facility shortly before 6 a.m., just as Guo was arriving. Randel told Guo to advise
Wang that the
Later that day, Randel, on behalf of the
C. Employees
Concerted Activities on April 10
There were no further incidents until the second week in April, when
several employees noticed reductions in their paychecks. On or about April 9,
several employees met with Randel. He suggested they confront Wang about the
pay issues at the Respondent’s facility. At around 6:05 a.m. on April 10, about
15 employees approached the front of the Respondent’s facility. They were
joined by Randel. The employees carried signs and set up a banner that read, “Amersino
unfair. Pay what you owe.” A few minutes later, Gou came out and asked Randel
what was happening. Randel told him they wanted to meet with Wang about some
problems.
After about a half hour, Wang came out and asked what the problem was.
The employees present included Gallardo, Rodriguez, Lezama, Pulido, Lopez, and
Rodriguez. Randel and several employees said that their paychecks had been reduced
inappropriately. Wang then asked why the employees did not come to speak with
him and why they always needed to bring in the
As the employees punched in, Wang began yelling at Lezama and another employee,
“Cristobal,” said they were stupid for bringing in the Union, and reaffirmed
his opposition to the
Randall arrived within 20 to 30 minutes and spoke with the employees. As
he spoke with them, a van left the facility. About 30 minutes later, the van
returned with replacement workers. Several employees, including Gallardo,
approached the van after it parked on the Respondent’s driveway. Randel and the
strikers then appealed to the replacement workers for solidarity and implored
them to leave. The replacement workers agreed and left.[10] Some time later,
Wang came back out and told the employees to return in the afternoon to meet
with him individually and correct any problems.[11]
The striking employees returned that afternoon and met individually with
Wang in his office and discussed their pay issues. In his conversation with
Lezama, Wang said that “the
Gallardo’s meeting with Wang was the last one of the day. Wang asked
Gallardo what was going on. Gallardo explained that Wang had been withholding
$5–10 each week from each paycheck. He also said that Guo was not the ideal
person to be handling money. Wang said he would see what he could do. Gallardo
then asked if it would be possible to relieve him of his inventory responsibilities
and allow him to do his other two jobs—operating the forklift and cleaning the
cooler. Wang said he would try to get someone else to do the inventory.[13]
D. Lezama’s Termination
On April 17, Lezama asked his supervisor, Guo, for permission to take off from work on April 18 and 19 in order to attend a criminal court proceeding 1 day and a dermatology appointment another day. Guo gave him permission to take the time off. However, instead of returning to work on Friday, April 20, he did not return to the Respondent’s facility until April 24—an absence of 4 workdays. He arrived at around 9 a.m., which was about 3-1/2 hours late. Obviously not intending to work that day, Lezama was dressed in leisure attire, not his usual comfortable working clothes. He did not punch in and entered the facility. Guo saw Lezama and asked why he had not shown up for work. Lezama did not respond and proceeded to a break area, where he spoke with several employees.
Wang saw Lezama talking to other employees and walked out of his office to speak with him. He asked Lezama why he had been absent for 4 workdays. Lezama told him that he saw a doctor about his pimples and had a court appearance, but did not show him a doctor’s note. Wang said it was unacceptable that Lezama was unable to work because of a pimple. Of particular importance to Wang was the fact that Lezama was one of only four employees who operated the forklift, a vital role in the Respondent’s operation. Lezama then asked if he could return to work the next day. In accordance with his policy of replacing employees who had been absent for 2–3 days without permission or do not call in sick before the workday begins, Wang told Lezama he had been terminated.[14]
E. Employees Concerted Activity on April 29
On April 28, the Board conducted a representation election at the
Respondent’s facility. Gallardo voted and was the sole observer on behalf of
the
On April 29, the day after the election, Randel stood outside the facility and spoke with employees as they reported to work. He briefed them about the election and the likelihood that a hearing would be scheduled to determine the outcome. By 6 a.m., all of the employees had reported to work and he left.[15]
A little while later, Gallardo had finished loading a truck when Wang called him into his office. Wang asked Gallardo why he did not list three pallets of garlic on the inventory sheet. Gallardo said he forgot. Wang responded with an expletive and asked if Gallardo was asleep on the job. Gallardo told Wang not to speak to him like that. Wang responded that he could not look upon Gallardo with “good eyes” after what happened at the election.” Wang then threatened to terminate Gallardo if he made another mistake. This was unusual, since Gallardo had never been threatened with disciplinary action before for mistakes he made with inventory.[16] Gallardo told Wang that he could not terminate him because there had been an election and he now belonged to a union. Gallardo said that if Wang terminated him, others will also leave. He also reminded Wang about his request to have someone else do the inventory. Wang said he did not care about that and wanted Gallardo to do it. He warned Gallardo that, “if you can’t accept this job, I have no job for you here.” Gallardo insisted he would not do inventory and threatened that other employees would walk out with him if he was terminated. Wang dared Gallardo to carry out his threat. Gallardo then walked out and informed the other employees that Wang terminated him. Since Wang had not told him he was terminated, Gallardo’s statement could only mean that he considered himself terminated because he would no longer do inventory as required by Wang as a condition of his employment.
At that point, Rodriguez, having heard and seen the discussion between Wang and Gallardo, went over to Wang’s office and, even though the door was open, banged on Wang’s office window several times with a cellular telephone, and motioned for Wang to come outside. Wang came out of his office and Rodriguez told him there was no reason to yell at Gallardo. Wang told Rodriguez he was suspended for his behavior. Wang then walked out onto the warehouse floor and told Gallardo that he was terminated. A group of about 10 employees, including Gallardo, Rodriguez, and Lopez, then walked out the facility. They gathered outside and Gallardo called Randel.[17]
A few minutes later, at about 6:30 a.m., Randel arrived and spoke with the group of about 20 employees. Pickard came a few minutes later. They spoke with the employees, who decided to set up a picket line. As they spoke, a van carrying no passengers left the facility. At about 9:30 a.m., Wang came out and asserted the right to suspend Rodriguez for insubordination. In the presence of the striking employees, which included Gallardo, Rodriguez, and Lopez, he told Randel he would “be sorry you’re doing this.” Wang accused Randel of trying to “kidnap” his business and insisted his facility would “never go union. I’ll close first.” Randel then told Wang to “go away, we don’t really want to talk to you right now.”
A short while later, the van returned with passengers. Randel and the protestors correctly assumed the passengers were replacement workers. Several picketers blocked the vehicle from entering through the driveway entrance to the facility. The van parked and the passengers exited the van on the driveway. As they attempted to enter the facility, the picketers urged them to refrain from working for the Respondent. Wang delved into the crowd, pushed Gallardo and told Gallardo not to talk to the replacement workers because he had been terminated. Gallardo agreed to refrain from any further action, but told Wang not to push him. Randel intervened and pulled Gallardo away.[18]
Wang reentered the facility, but returned later and told the protestors to return at 2 p.m. for their salaries. He also reminded Rodriguez he was suspended. At approximately 2 p.m., the employees returned for their paychecks. Guo handed them out, as Wang stood next to him. With the exception of Gallardo and Rodriguez, Wang told the employees to return to work on May 1, when he would determine who would continue to work for him. Wang cursed at Rodriguez, told him to leave, and told Gallardo that he preferred to go to court rather than have Gallardo work there.[19]
F. The Termination of Lopez and Rodriguez
Notwithstanding the fact that Wang told the workers to return
to work on May 1, he was aware of the fact that May 1 was a day of nationwide
mass demonstrations by Hispanic workers. One was scheduled for
On May 2, Lopez, Rodriguez, and the other Hispanic employees arrived at work at their regular time and attempted to punch in, but Wang told them to return at 2 p.m. At or around that time, Wang met individually with each employee. During his individual meetings with Lopez and Rodriguez, Wang told each of them that he found temporary replacement workers and did not have work for them. In Lopez’ case, Wang asked him to leave his telephone number so he could call him if he had more work for him. Wang has never recalled either employee to work since that day.[21]
iii. legal analysis
A. The 8(a)(1) Charges
The complaint alleges that the Respondent, by Wang’s conduct,
violated Section 8(a)(1) by: (1) informing employees on April 10 that it would
be futile to join the Union because the Respondent would never recognize the Union;
and (2) shoving an employee on April 29 because he was engaging in union activity and told
an employee not to speak with new employees. The Respondent denied the allegations.
Absent threats or promise of
benefit, an employer is entitled to explain the advantages and disadvantages of
collective bargaining to its employees in an effort to convince them that they
would be better off without a union. Langdale Forest Products Co., 335 NLRB
602 (2001). An employer violates Section 8(a)(1), however, by
threatening employees that any attempt to bring in a union would be futile. Winkle Bus Co., 347 NLRB No. 108, slip
op. at 3 (2006), citing Well-Stream Corp., 313 NLRB 698, 706 (1994). An unlawful threat of futility is
established when an employer states or implies that it will ensure its nonunion
status by unlawful means. Ready Mix, Inc., 337 NLRB
1189, 1190 (2002).
The credible evidence established that on April 10, Wang told employees,
in pertinent part, that he would never accept the
The credible evidence also established that Wang shoved
Gallardo as he spoke or attempted to speak with replacement workers and rebuked
Gallardo for his efforts. However, other than Gallardo, a nonemployee at the
time, and Randel, there is no evidence that other employees heard Wang’s
comments. Even if other employees saw Wang push Gallardo, his conduct occurred
as striking employees prevented a van with replacement workers from entering
the facility. Under such circumstances, it was not established that Wang’s
actions tended to restrain employees in the exercise of their Section 7 rights.
Wackenhut Corp., 348 NLRB No. 93,
slip op. at 1 (2006).
B. The 8(a)(3) and Charges
The complaint alleges that the Respondent, by Wang, violated Section 8(a)(3) and (1) by: discharging Lezama on April 24; discharging Gallardo on April 29; suspending Rodriguez on April 29, and discharging and refusing to reinstate him on May 2; and discharging Lopez on May 2. The Respondent denies the charges and alleges that the discriminatees were either discharged for cause or went on strike and were appropriately replaced by other workers.
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the General Counsel
has the initial burden of establishing that the employee engaged in concerted
protected activity, “the employer had knowledge of the employee’s protected
activities, the employer took adverse action against the employee, and the employee’s
protected concerted activity was a motivating factor in the employer’s adverse
action against the employee.”
There is extensive evidence of the Respondent’s union animus.
On April 10, Wang accused the
1. Gallardo
Gallardo engaged in an extended amount of concerted activity for over 5 weeks prior to his discharge on April 29 and Wang was well aware of it: Gallardo signed a union-authorization slip on March 20; was part of a group of employees and union representatives that requested recognition of the Union, and confronted Wang in front of the facility on March 20 and April 10 about employee terminations and wage issues; he confronted replacement workers on April 10 and 29; in his individual meeting with Wang on April 10, complained about inappropriate payroll deductions and questioned Guo’s competency to handle the payroll; and, at the representation election on April 28, he voted, was the sole observer on behalf of the Union, and challenged 22 ballots.
The credible evidence established that Wang terminated Gallardo after the latter walked out of Wang’s office on April 29. Wang had pointed out mistakes by Gallardo in performing inventory that, because of the intensity of Wang’s reaction to the mistake and his statement that he now viewed Gallardo negatively, indicated that the inventory issue was pretextual. At that point, however, there was no adverse action, as Gallardo had not been terminated. He was only threatened with termination if he made another inventory mistake. Gallardo then escalated the dispute by insisting he would no longer perform inventory because Wang promised to look into the situation on April 10. Wang rejected that ultimatum, told Gallardo he would be terminated if he refused to do inventory, and Gallardo walked out. Gallardo then told other employees that he had been terminated, but that was only true, at that point, in the constructive sense; Gallardo essentially resigned. Once Wang came out on the floor, after being confronted by Rodriguez, he then told Gallardo that he had been terminated.
In essence, Wang’s discussions with Gallardo were replete with 8(a)(1) violations, but Gallardo was not terminated as a direct result of his involvement in protected concerted activities. On April 10, Wang promised to look into Gallardo’s complaint about having to do the inventory along with his other duties. However, there was no guarantee, nor was there any discussion prior to April 29, that Gallardo would be relieved of those duties. Gallardo then resigned and/or was terminated because he refused to perform inventory duties. Accordingly, there is no connection between Gallardo’s termination and his protected concerted activity. Thus, the evidence failed to support a prima facie case of an 8(a)(3) violation against Gallardo.
2. Lezama
Lezama engaged in protected concerted activity for over 4 weeks prior to his discharge on April 24 and Wang was well aware of his involvement: Lezama signed a union-authorization slip on March 20; was part of the groups that confronted Wang about employee conditions on March 20 and April 10, and confronted replacement workers on April 10. The credible evidence revealed, however, that Lezama pushed the proverbial envelope too far.
Lezama requested permission on April 17 to take 2 days off to attend to a court case and a doctor’s appointment. His supervisor, Guo, approved the request. Instead of returning to work on April 19, however, Lezama took 2 additional workdays off without requesting permission. To make matters worse, he arrived at the facility 3-1/2 hours late on April 24, but was not prepared to work. He was “dressed-up” and not in the usual comfortable work attire that employees wore, did not punch in and went to a nonwork area where he engaged in conversation with other employees. When confronted by Wang, Lezama did not provide a satisfactory excuse for the additional 2 days that he took off without permission and was terminated. As there was no credible evidence to refute Wang’s testimony regarding the Respondent’s time and attendance procedures, it is evident that Lezama was terminated for reasons unrelated to his protected concerted activities. Therefore, the proof in support of Lezama’s 8(a)(3) claim also failed to establish a prima facie case.
3. Lopez and Rodriguez
Rodriguez and Lopez engaged in protected concerted activity for nearly 4 weeks and 6 weeks, respectively, prior to their discharge on May 2, and Wang was well aware of their involvement: They signed union-authorization slips on March 20; participated in the groups that confronted Wang about employee conditions on March 20 and April 10; voted in the election; confronted replacement workers on April 10 and 29; and protested in front of the Respondent’s facility on May 1.
The credible evidence established that Wang told Lopez, Rodriguez, and the other employees, after striking on April 29, to return on May 1, at which time he would determine who would continue to work for the Respondent. In fact, the Respondent knew that May 1 would be a day of nationwide protests by Hispanic workers and that none of the Hispanic employees would be reporting to work that day.[22] On May 2, Lopez and Rodriguez attempted to punch in at the regular time for work, but Wang told them to return at 2 p.m. At or around that time, Wang met individually with each returning employee. In his meetings with Lopez and Rodriguez, Wang did not mention anything about their absence from work on May 1. Instead, Wang told them that he had replaced them with temporary workers and did not have work for them. Wang did not explain how this could have occurred, since he made no mention of that fact on April 29 when he told Lopez and others to return on May 1. Furthermore, it is unrefuted that there was no work on May 1 and that Lopez and Rodriguez reported to work at the regular time on May 2, only to be told to return at 2 p.m. They have never been called back to work.
Given their extensive support for
In order to
establish a
legitimate and substantial
business justification for refusing to reinstate striking employees, however,
the employer must provide specific proof that the strikers’ positions
were actually filled by permanent
replacements. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345–346 (1938);
Supervalu, Inc., 347 NLRB No. 37,
slip op. at 17 (2006); Capehorn
Industries, supra; Fleetwood
Trailer Co., supra. The
Respondent failed to make such a showing. Indeed, Wang told the workers that he
filled their positions with temporary workers. Under the circumstances, the Respondent violated Section 8(a)(3) by
refusing to reinstate Lopez and Rodriguez after they engaged in protected concerted
activity.
Conclusions of Law
1. Amersino Marketing Group, LLC, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. Industrial Workers of the World is a labor organization within the meaning of Section 2(5) of the Act.
3. By threatening the futility of collective bargaining if
the
4. By discharging and refusing to reinstate Manuel Lopez
and Juan Antonio Rodriguez because they supported the
5. By engaging in the conduct described above, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair
labor practices, I find that 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 and refused to reinstate Manuel Lopez and Juan Antonio Rodriguez, must offer them reinstatement and make them whole for any loss of earnings and other benefits, computed on a quarterly basis from date of 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 recommended[23]
ORDER
The Respondent, Amersino Marketing Group, LLC,
1. Cease and desist from
(a) Threatening the futility of collective bargaining if the Respondent’s employees select the Industrial Workers of the World or any other union as their collective-bargaining representative.
(b) Discharging or otherwise discriminating against any employee for supporting the Industrial Workers of World or any other union as their collective-bargaining representative.
(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Manuel Lopez and Juan Antonio Rodriguez full reinstatement to their former jobs or, if their jobs no longer exists, to a substantially equivalent position, without prejudice to their seniority or any other rights or privileges previously enjoyed.
(b) Make employees Manuel Lopez and Juan Antonio Rodriguez whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any reference to the unlawful discharges, and within 3 days thereafter notify the employees in writing that this has been done and that the discharges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in
(f) Within 14 days after service by the Region, mail copies of the attached notice marked Appendix, at its own expense, to all warehouse employees, drivers and helpers who were employed by the Respondent at its Brooklyn, New York facility at any time from the onset of the unfair labor practices found in this case until the completion of these employees’ work at that jobsite. The notice shall be mailed to the last known address of each of the employees after being signed by the Respondent’s authorized representative.
(g) 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.
It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.
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 threaten the futility of collective
bargaining if the Respondent’s employees selected the Industrial Workers
of the World or any other union as their collective-bargaining representative.
We will not discharge or otherwise discriminate against any of you for supporting the International Workers of the World or any other union.
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 this Order, offer Manuel Lopez and Juan Antonio Rodriguez full reinstatement to their former jobs or, if their jobs no longer exists, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
We will make Manuel Lopez and Juan Antonio Rodriguez whole for any loss of earnings and other benefits resulting from their discharges, less any net interim earnings, plus interest.
We will, within 14 days from the date of this Order, remove from our files any reference to the unlawful discharges of Manuel Lopez and Juan Antonio Rodriguez, and we will, within 3 days thereafter, notify each of them in writing that this has been done and that the discharges will not be used against them in any way.
Amersino Marketing Group, LLC