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,
A and G, Inc., d/b/a
Alstyle Apparel and United Food and Commercial
Workers Union, Local No. 324, United Food and Commercial Workers International
December 28, 2007
DECISION AND ORDER
By
Members Schaumber, Kirsanow, and Walsh
On
July 12, 2006, Administrative Law Judge Lana H. Parke issued the attached
decision. The Respondent filed
exceptions and a supporting brief; the General Counsel and the Charging Party
filed separate answering briefs; and the General Counsel filed limited
cross-exceptions and a supporting brief.
On March 19, 2007, the National Labor Relations Board remanded the case
to the judge for further consideration in light of the Board’s decisions in Oakwood Healthcare, Inc., 348 NLRB No.
37 (2006), Croft Metals, Inc., 348
NLRB No. 38 (2006), and Golden Crest
Healthcare Center, 348 NLRB No. 39 (2006).
On
June 26, 2007, Judge Parke issued the attached supplemental decision. The Respondent filed exceptions and a
supporting brief; the General Counsel and the Charging Party filed separate
answering briefs; and the General Counsel filed limited 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 decisions and the record in
light of the exceptions and briefs and has decided to affirm the judge’s
rulings, findings,[1]
and conclusions as described briefly below, and to adopt the judge’s recommended
Order as modified and set forth in full below.
1. The judge found that the Respondent engaged in
unlawful surveillance in violation of Section 8(a)(1) by checking the security
badges of employees passing out union handbills on their breaktime. The Respondent excepts to this finding, but
disputes only the judge’s underlying factual determination that it offered no
justification for the security guard’s conduct.
On review, we find that while the Respondent explained why the guards
check the badges of employees entering the facility for security purposes, it
failed to explain why the guards would need to check the badges of employees
already inside the facility and on break.
We thus find no basis for overruling the judge, and we adopt her finding
of the violation.
2. On remand, the judge found that the shift leaders are
not supervisors because they do not have the authority under Section 2(11) of
the Act to assign work or to responsibly direct employees. We agree.
With respect to assignment, we find that, even assuming that the shift
leaders assign work to the employees, such assignments do not involve the
exercise of independent judgment for the reasons stated in the judge’s
supplemental decision.
Regarding responsible direction, the judge found the
requisite degree of accountability based on a tenuous inference rather than any
record evidence. Under Board precedent,
however, the Respondent must present evidence of “actual accountability” to
prove responsible direction.
3. Applying Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), the judge
found in her initial decision that the Respondent unlawfully discharged employees
Tuan Bui, Loi Nguyen, Phuong Nguyen, Frankie Trinh, Hung Vong, and Shift Leader
Kiet Tuan Ly in violation of Section 8(a)(3).
We adopt the judge’s findings. In
doing so, we agree with the judge that the General Counsel met his initial
burden of proving that union activity was a motivating factor in the discharges. Unlike the judge, however, we do not rely on
Human Resources Director Ted Olea’s statements involving the employees’ union
activity or the labor relations consultants’ lawful statements as evidence of
animus. Instead, we rely on the Respondent’s
unexcepted-to violations of Section 8(a)(1) set forth above. We also rely on the timing of the discharges,
which strongly indicates
that the discharges were motivated by the employees’ union activities, not
their alleged misconduct.[2]
In
finding that the Respondent failed to meet its Wright Line rebuttal burden regarding the discharges of employees Tuan
Bui, Loi Nguyen, Phuong Nguyen, Trinh, and Vong, we agree with the judge that
the Respondent did not discharge the employees based on a reasonable belief of
misconduct. The judge found that the
employees did not play soccer on the work floor as alleged by the Respondent,
and that the Respondent conducted only a limited investigation into the alleged
misconduct, deciding to discharge the employees before giving them an opportunity
to explain the allegations against them.
These findings support the conclusion that the discharges were
discriminatorily motivated and not, as the Respondent asserts, based on a
reasonable belief of misconduct.
We
also find that the Respondent failed to meet its Wright Line rebuttal burden regarding Shift Leader Ly. Although the Respondent discharged Ly
allegedly for failing to stop employees from playing soccer on the work floor,
it did not discharge, or even discipline, two other shift leaders who testified
to having passively watched the same misconduct. Such disparate treatment indicates that Ly’s
discharge was motivated by his union activities, rather than his alleged
tolerance of horseplay. See Central Valley Meat Co., 346 NLRB No.
94, slip op. at 2 (2006). Moreover, the
Respondent did not inform Ly of the allegations against him or give him an
opportunity to explain his version of the events before discharging him, facts
that further demonstrate the pretextual nature of the Respondent’s
defense. See Midnight Rose Hotel & Casino, supra at 1005.[3]
4.
The General Counsel requests that the notice be posted in English, Spanish, and
Vietnamese. The record establishes that
many of the Respondent’s employees speak Vietnamese or Spanish and have
difficulty understanding the English language.
Consistent with Board precedent in such circumstances, we shall modify
the Order to require the Respondent to post the notice in English, Spanish, and
Vietnamese. See, e.g., St. Francis Medical Center, 347 NLRB No.
35, slip op. at 1 fn. 4 (2006).
The
General Counsel also requests a broad cease-and-desist order and that the
notice be read aloud to employees. The
General Counsel has not, however, established that the Board’s traditional
remedies, including a notice posting and a narrow cease-and-desist order, are
insufficient to address the violations found in this case. We therefore deny the General Counsel’s
requests. See Amptech, Inc., 342 NLRB 1131 fn. 3 (2004), enfd. 165 Fed. Appx. 435
(6th Cir. 2006) (rejecting request for broad cease-and-desist order); and Chinese Daily News, 346 NLRB No. 81,
slip op. at 4 (2006), enfd. 224 Fed. Appx. 6 (D.C. Cir. 2007) (denying request
for notice to be read aloud).
ORDER
The
National Labor Relations Board orders that the Respondent, A and G Inc., d/b/a
Alstyle Apparel, Anaheim, California, its officers, agents, successors, and assigns,
shall
1.
Cease and desist from
(a) Discharging any employee
for supporting the United Food and Commercial Workers Union, Local 234, United
Food and Commercial Workers International Union (the
(b)
Threatening employees that it will close its business if the
(c)
Asking employees if they have signed a union card.
(d)
Engaging in unlawful surveillance of employees’ union activities.
(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 from the date of this Order offer Tuan Bui, Loi Nguyen, Phuong
Nguyen, Frankie Trinh, Hung Vong, and Kiet Tuan Ly 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.
(b)
Make Tuan Bui, Loi Nguyen, Phuong Nguyen, Frankie Trinh, Hung Vong, and Kiet
Tuan Ly 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 judge’s original decision.
(c)
Within 14 days from the date of this Order, remove from its files any reference
to the unlawful discharges of Tuan Bui, Loi Nguyen, Phuong Nguyen, Frankie
Trinh, Hung Vong, and Kiet Tuan Ly, 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 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 Respondent has taken to comply.
3.
Substitute the attached notice for that of the administrative law judge.
Dated,
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Peter
C. Schaumber, |
Member |
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Peter
N. Kirsanow, |
Member |
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Dennis
P. Walsh, |
Member |
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(Seal) National Labor
Relations Board
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An
Agency of the
The
National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this notice.
federal law gives you
the right to
Form,
join, or assist a union
Choose
representatives to bargain with us on your behalf
Act
together with other employees for your benefit and protection
Choose
not to engage in any of these protected activities.
We will not discharge any employee
for supporting the United Food and Commercial Workers Union, Local 324, United
Food and Commercial Workers International Union (the
We will not threaten employees that
we will close our business if the
We will not ask employees if they
have signed a union card.
We will not engage in unlawful
surveillance of employees’ union activities.
We will not in any like or related
manner interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed by Section 7 of the Act.
We will, within 14 days from
the date of the Board’s Order, offer Tuan Bui, Loi Nguyen, Phuong Nguyen,
Frankie Trinh, Hung Vong, and Kiet Tuan Ly 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 Tuan Bui, Loi
Nguyen, Phuong Nguyen, Frankie Trinh, Hung Vong, and Kiet Tuan Ly 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 the Board’s Order, remove from our files any reference to the unlawful
discharges of Tuan Bui, Loi Nguyen, Phuong Nguyen, Frankie Trinh, Hung Vong,
and Kiet Tuan Ly, 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.
A and
G, Inc., d/b/a Alstyle Apparel
Julie B. Gutman and Patrick J. Cullen, Attys., for the General Counsel.
Stephen C. Key and Micah P. Pardun, Attys. (The
Key Firm, PC), of
Joshua F. Young, Atty. (Gilbert & Sackman),
of
DECISION
Statement of the Case
Lana
H. Parke, Administrative Law
Judge. This matter was tried in Los
Angeles, California, on April 3–7 and 17–19, 2006, on complaint and notice of
hearing (the complaint) issued January 31, 2006,1 by the
Regional Director of Region 21 of the National Labor Relations Board (the
Board) based on charges filed by United Food and Commercial Workers Union,
Local 324, United Food and Commercial Workers International Union (the Union or
the Charging Party). The complaint alleges A and G Inc., d/b/a Alstyle Apparel
(Respondent) violated Sections 8(a)(1) and (3) of the National Labor Relations
Act (the Act). Respondent essentially denies all allegations of unlawful conduct.
i. issues
1. Whether, at relevant times, Kiet Tuan Ly was a supervisor within the meaning of Section 2(11) of the Act.
2. Whether Respondent violated Section 8(a)(3) and (1) of the Act in early August by transferring employee Kiet Tuan Ly from the second to the first shift.
3. Whether Respondent violated Section 8(a)(3) and (1) of the Act on August 18 by discharging employees Kiet Tuan Ly, Tuan D. Bui, Loi Tan Nguyen, Phuong Hoang Nguyen, Frankie Trinh, and Hung Vong.
4. Whether Respondent violated Section 8(a)(1) of the Act at various times in July and August by threatening employees with plant closure and job loss if employees selected the Union as their representative, by interrogating employees about their union activities and support, by engaging in surveillance of employees’ union activities, and by otherwise interfering with, restraining, and coercing employees in the exercise of their Section 7 rights by the following conduct: checking identification badges of and yelling at employees who took union flyers and directing employees not to take union flyers.
5. Whether an appropriate remedy would include an order for Respondent to read any notice to convened employees as follows: Ted Olea, human resources director, in English; Grace Au, human resources representative, in Vietnamese; Joaquim Orriols, general manager, in Spanish.
ii. jurisdiction
At all relevant
times, Respondent, an
Findings of Facts
A. Respondent’s Business
Respondent’s
facility is a multistructure compound fronting on
Respondent
primarily manufactures tee shirts, producing both fabric and finished product
during the course of three shifts: the first shift, 6 a.m. to 2 p.m., the
second shift, 2 to 10 p.m., and the third shift, 10 p.m. to 6 a.m. During the
relevant period, Respondent employed 600 workers at the facility in its knitting,
dying, cutting, sewing, and shipping departments. In Respondent’s knitting
department, the T shirt fabric is produced by machines of varying size and
complexity, all of which weave fabric from spools of thread or yarn. The
thread, which may vary in texture, is wrapped around cardboard cores called
cones. Both cones and thread scraps fall to the floor during production and are
swept up and disposed of by cleaning employees. At all times relevant hereto,
the following management structure, in pertinent part, has existed at
Respondent:
Joaquim Orriols (Orriols) General Manager
Alfonso Doroteo (Doroteo) Knitting Department Supervisor
Grace Au (Au) Human Resources Representative
Akhtar Kahn (Kahn) Chief of Safety
During the relevant
period, about 90 percent of the employees in the knitting department were
Vietnamese speaking.3 All alleged discriminatees named below,
except Kiet Tuan Ly,4 worked
in the knitting department on the second shift
Kiet Tuan Ly (Ly)
Tuan D. Bui (Bui)
Loi Tan Nguyen (Loi Nguyen)
Frankie Trinh (Trinh)
Hung Vong (Vong)
Phuong Hoang Nguyen (Phuong) Nguyen
Ly worked as a
shift leader, Phuong Nguyen as a mechanic, and the others as machine operators.
B. Supervisory Status of Kiet Tuan Ly
Respondent employed
shift leaders for each of the knitting department shifts. During July and
August Carlos Galan (Galan), Anthony Trinh, and Ly served as knitting department
shift leaders. Ly was shift leader for the second shift until sometime prior to
August 12 when he was transferred to the first shift. The shift leaders
reported to Doroteo, who in turn reported to Orriols. The parties stipulated
that Ly did not have the authority to hire, transfer, suspend, lay off, recall,
promote, discharge, reward, or adjust grievances or to effectively recommend
any of the foregoing. In issue is whether Ly had the authority to assign,
discipline, or responsibly direct employees or effectively to recommend such
actions within the purview of Section 2(11) of the Act. The evidence
establishes that Ly had the same authority as the other shift leaders, and the
following findings are an amalgam of Orriols’ and the shift leaders’ testimony
as to shift leader authority.
During the relevant
period herein, each employee in the knitting department was responsible for the
operation of as many as five machines.
Orriols trained the shift leaders on how to work with employees, how to
find out which machine employees felt comfortable with, and how to make the
assignments, as appropriate assignment is crucial to production. According to Orriols,
he “spent a lot of hours every day teaching the area of the assignment.”
On a daily basis, Orriols determined which machines should be run by assessing production needs and machinery operational availability. Prior to the beginning of each shift, Orriols provided the shift leaders with preprinted forms he had prepared entitled Machine Assignment Form on which were listed the machines that were to be run that shift. The shift leaders utilized the form and their knowledge of the capabilities of each worker to assign the machines.5 According to Orriols, once a shift leader knew his coworkers’ experience, machine assignment was an easy matter. If an employee complained that the machine assignment was too much for him, the shift leader reduced the number of machines assigned and discussed the matter with Orriols the next day. In the last 3 years, five or six employees have complained to Orriols about their machine assignments. On those occasions, Orriols met with the employee and the shift leader to resolve the problem.
After assigning machines, the shift leaders oversaw the work of and instructed and assisted other employees in operating their machines. As needed, they filled in for absent machine operators. The shift leaders monitored safety compliance and productivity.
The shift leaders were expected to report to management such employee infractions as not keeping the work station clean or safety breaches. Ly’s signature appears along with those of admitted supervisors on certain documented disciplinary actions for knitting department employees. However, Ly had no authority to issue oral or written warnings and was not consulted before imposition of such.6 Should a disciplinary issue arise, Orriols expected Ly to make a note of the situation and leave it on his desk. In unusual situations, Ly could send an employee home and review the matter with Orriols the next day. Ly could also permit an employee to leave early, following the same notification procedure.
Orriols determined when overtime would be worked, what work would be done, and the number of employees necessary. When notified by Orriols that overtime workers were needed, the shift leaders chose those employees capable of running the machines to be operated during overtime. There is no evidence as to whether employees could decline or protest overtime; at times, overtime was assigned on a voluntary basis, but the record is unclear as to the frequency or circumstances of voluntary versus involuntary overtime.
C. The Union Campaign–July and August 2005
In July, the
July 15: Union
Representatives passed out flyers, in English and Spanish, with attached union
authorization cards to Respondent’s employees at the front and rear entrances
to Respondent’s facility from about 1:30 to 3 p.m. Ly witnessed the handbilling as he stood with
Doroteo at the lunchroom door. Ly told Doroteo that he wanted to pick up some
flyers; Doroteo shook his head and said that the
Between 1:30 and 2 p.m., 20–40 employees congregated in the smoking area near the front entrance. Olea, Au, Orriols, and Doroteo stood at the facility’s front door, a location from which the handbilling and the smoking area were visible. While they were there, a number of employees obtained flyers from the union representatives. Vong, Trinh, and Loi Nguyen distributed flyers to employees in the smoking area. Ly and Vong translated the flyer information for employees, and Vong encouraged them to sign and return the authorization cards.
A couple of days later at quitting time, Loi Nguyen solicited another employee to sign an authorization card while Au watched from nearby.
August 8: Union representatives passed out flyers cum union authorization cards in English, Spanish, and Vietnamese to many of Respondent’s employees at the front and rear entrances to Respondent’s facility during three separate 2-hour periods: 5:15 a.m., 1 p.m., and 9 p.m. On this day or on August 12, Au stood at the front entrance for about 20 minutes looking in the direction of the handbilling before obtaining a flyer from a union representative. Vong and Loi Nguyen received flyers from union representatives and passed them out to employees in the smoking area while Olea, Orriols, and Doroteo, inter alia, stood outside the front entrance to the facility. Phuong Nguyen distributed flyers to fellow workers at the smoking area until he saw Olea looking directly at him whereupon he put the flyers down. Bui distributed flyers to coworkers and urged them to sign authorization cards, as Au stood 2 to 3 feet away. Trinh distributed flyers to employees in the smoking area and urged them to sign authorization cards. When Trinh entered the facility, he gave a flyer to Doroteo and recommended he sign it to get a salary raise.
According to Ly, Dung Nguyen7 gave a flyer to Ly inside the plant. Seeing Ly with the flyer, Olea asked him what he had. When Ly replied, “Nothing,” Olea moved on. Olea denied ever asking any employee what he/she held and could not recall seeing Ly with a flyer but pointed out that “everybody had flyers at one time or another.” In the absence of clear recall by Olea, I accept Ly’s testimony.
August 12: Union Representatives again passed out flyers to Respondent’s employees at the front and rear entrances to Respondent’s facility. This flyer was headed, “Alstyle doesn’t care about its workers” and detailed five employee complaints regarding extreme heat in the plant, failure to get breaks and lunches, unpaid overtime, absence of raises, unfair termination after job injury, and suspension for missing work. Two of the complaints read as follows:
I don’t always get paid for my overtime and in two years I have never received a raise.–Worker in cutting
I couldn’t work on Saturday. When I showed up to work on Monday, they sent me home. That’s not fair.–Worker in Knitting
August 24: Following Respondent’s August 18 discharge of six employees, union
representatives, along with a number of the discharged employees, passed out
flyers at the facility addressing the terminations and urging solidarity under
union aegis.
D. Alleged 8(a)(1) Conduct
1.
Respondent’s meetings with employees
a. The July 20 meeting
On about July 20,
Respondent held dual session meetings with the second shift of its knitting
department employees. Present at each session were Au and two labor
consultants, Gus and Carlos Flores, whom Respondent had hired to present Respondent’s
opposition to the
Vong. Vong attended the first session. In speaking to employees, the
consultant sometimes looked into his “notes or his books.” Gus Flores said that
if the Union could obtain signatures of 30 percent of Respondent’s employees
authorizing it to represent the workers, the
During the meeting,
Vong asked about overtime and double-time wages; Bui asked how the
Phuong Nguyen: Phuong Nguyen attended the first session.
Gus Flores told the employees that the
Loi Nguyen: Loi Nguyen attended the second session. Gus Flores said that if
employees joined the
Bui: Bui attended the first session. Gus Flores said, in pertinent part,
that if the
Trinh: Trinh attended the first session. Although Trinh’s testimony was somewhat confused, the gist of it was that Gus Flores told the employees that a strike would lead to a situation where Respondent would have to close its business.11 During the question/answer period, Trinh asked why he had not received a raise in two years.
b. The August 16 meeting
On August 16,
Respondent held a meeting with the knitting department second shift employees.12 In the meeting, Olea described the information
in the union flyers entitled “Alstyle doesn’t care about its workers,” as lies.13
He told employees, “It is time that you
stand up and tell the
During the
question/answer period that followed, Trinh loudly asked Olea why he had not
received a raise in almost 2 years and said he did not trust him any more. Vong complained that the Company suspended
employees unfairly and referred to a 3-day suspension he had been given in June
for a 3-hour unauthorized absence. Vong
asked why the Company had punished him with the unpaid suspension. Olea told Vong to see him after the meeting. Several employees, including, Phuong Nguyen,
Loi Nguyen, Dung Nguyen, Hao, Bui, and Trinh urged Vong to demand an immediate
answer while Olea watched their discussion.
Vong and Trinh insisted that Olea answer at once. According to Olea, Trinh “was yelling and
screaming that [Olea] should go get the file,” accused Olea of lying, and
turned his back on him to speak to the group of employees. Olea was frustrated, believing that Trinh was
causing him to lose control of the meeting by his “ridiculous question.” Olea left the meeting and obtained Vong’s
personnel file.
Upon returning with
Vong’s file, Olea addressed Vong and the group, saying that “because Vong had
previous unexcused absences, his latest absence merited a 3-day suspension.” Olea said that Vong should have been
terminated for attendance and that he was lucky he was still there.
On August 18, Olea
placed a memo in Trinh’s file to the effect that Trinh had been insubordinate
and disrespectful during the August 16 meeting, “inciting the group, trying to
get the group to revolt,” which behavior was “not acceptable.”14
2. Alleged
interrogation, surveillance, and coercion
Sometime in July or
August, Au had a conversation with Martin Bui, assistant shift leader, and Ly
in Respondent’s lunchroom. She told the two men that if the Union came into the
company, she would resign and Respondent would close the business and move to
On August 8, Kahn
approached union representative Matthew Bell (
In early August at
about 10 p.m., as Vong and Dung Nguyen sat together at a table in the smoking
area, Au approached them.17 Vong testified that
Au asked if he had signed a union card, to which Vong answered he had both
signed and sent it. Au said employees
should think very carefully before sending the cards. Vong’s account of this event in his
prehearing affidavit of September 29 differs from his testimony at the hearing.
In his prehearing affidavit, Vong said he volunteered the information that he
had signed a union card after Au cautioned employees to think carefully before
sending cards to the
On August 24, while union representatives and discharged
workers passed out flyers at the front entrance, some employees on break talked
with their former coworkers through the perimeter fence. As they did so, security
guard Antonio Leonor, Jr. (Leonor) yelled at them to get away from the
fence.
E. Alleged 8(a)(3) Conduct
1.
Transfer of Kiet Tuan Ly
In early August, Au
and Orriols met with Ly and Anthony Trinh to inform them that they were to
exchange shift leader places.19 Ly was to assume Anthony Trinh’s first shift
duties and Anthony Trinh was to take Ly’s place as the second shift leader.
According to Ly, Orriols told him that he would be transferred from the second
to the first shift to improve first shift production. According to Orriols, he
transferred Ly to the first shift because Ly’s production, energy, and “passion”
were “completely down . . . All of a sudden, the energy was not there,” and the
production of the second shift dropped.20
Orriols hoped that placing Ly on the first
shift would permit Respondent to teach him a little more and to bring him back
to the original energy. Orriols
testified that he told both Ly and Anthony
Trinh that second shift production was down, that Ly’s energy level was not the same as
formerly, and that he was being transferred to permit him to regain his “passion
of working close to [ Orriols] and with [ Doroteo].” According to Orriols, both
Ly and Anthony Trinh felt the challenge was “great” and were happy with the
changes.21 Ly commenced first-shift lead duties on the
following day.22
In determining
whether to credit Ly or Orriols’ account of what Ly was told about the
transfer, I have considered the following factors as well as witness manner and
demeanor: Orriols’ equivocal testimony
as to Ly’s performance, the lack of any corroborative evidence to substantiate
decreased second-shift production, and the inherent improbability that Ly would be “happy” and feel the “challenge
was great” upon being told his production and performance were so lacking as to
necessitate a transfer. Further, Au testified at a December 1 Unemployment
Insurance Appeals Board hearing that Ly had been transferred because the first
shift had some problems, which suggests that her understanding of the transfer’s
purpose coincided with Ly’s.23 Accordingly, I accept Ly’s account of what
Orriols told him and find that Orriols told Ly he was being transferred to the
first shift to improve production there.
2. August
18 Discharges of Tuan D. Bui, Loi Tan Nguyen, Phuong Hoang Nguyen, Frankie
Trinh, and Hung Vong
Respondent
presented three witnesses who testified they saw certain employees playing a
form of soccer during work time in July/August. All three served as shift leaders during the
relevant period. Their testimony is summarized as follows:
Carlos Galan: According to third-shift leader, Carlos Galan (Galan), on three occasions he observed certain employees playing soccer in an aisle between the machines during work time. Galan testified that the soccer playing occurred between 8 and 8:45 p.m., a time that coincided with shift leaders leaving the production floor for a daily 9 p.m. meeting with fixers to discuss machinery problems that lasted for 10–15 minutes (the fixer meeting).24 Galan’s description of the soccer playing was somewhat vague: “they would play soccer . . . with the balls of the yarn . . . and sometimes, they would grab cones25 that were there as well . . . they would use cones, one on each side . . . there were five playing, sometimes.” The playing occurred during periods where the employees were also operating their machines. The playing lasted only “minutes” in Galan’s estimation; when the players saw anybody looking at them, they scattered back to their machines.26 The first time, on an unknown date, Galan recalled Loi Nguyen, Bui, Phuong Nguyen, Vong, and (he believed) Trinh playing. Galan told Ly to be careful, to control his staff, and to avoid accidents. Ly said not to worry, that he would handle things his own way. Sometime in July, Galan observed the same employees playing soccer a second time and spoke to Ly, who said he would take the issue under consideration. Galan also told Trinh that he could not play inside the plant for safety reasons. Galan testified that his third soccer sighting occurred on Friday, August 12, as “we were about to close.”27 According to Galan, he saw the same employees playing in the same location in the same manner as the previous two times. Galan saw Trinh throw away a ball of wound-up thread. Galan retrieved the ball from the trash along with a smaller thread ball he found there (the thread balls). The larger ball was about half the size of a regulation soccer ball and, Galan said, could only have been created by unwinding the thread from a cone; the smaller was about the size of a tennis ball. According to Galan, Martin Bui and Anthony Trinh told him they had seen the five employees playing with the smaller thread ball “before.”
Martin Bui: During relevant periods of July and August, Martin Bui was assistant
shift leader for the second shift; he was promoted to shift leader at the end
of September. Martin Bui testified that he first saw employees playing soccer 3
to 4 months “ago.”28 In initial testimony,
Martin Bui said he saw three to four employees, sometimes two, “use the cone or
they would wrap the thread and make it into a ball. They would kick back and forth or throw back
and forth.” They also used two cones to
make a goal. In later testimony, he said five employees played soccer the first
and second times he saw it, and under cross-examination, he said he saw
sometimes three and sometimes two employees playing soccer, but among the five
alleged discriminatees, they all played. Although Martin Bui testified that he
did not know the first or second time who was playing, he testified that he had
seen Vong, Bui, Trinh, Loi Nguyen, and Phuong Nguyen playing at some time.
Martin Bui said he spoke to Phuong Nguyen after the second sighting and told
him not to play like that, as it would cause him to be fired. Martin Bui
assertedly did not report the matter to management after either the first or
second sighting essentially because of loyalty to Ly. On August 12, at 8:55, according to Martin
Bui, he saw Phuong Nguyen knee kick the smaller thread ball toward Bui and
Vong. Martin Bui told Vong not to play
soccer like that because he would be fired. Phuong Nguyen immediately grabbed
the ball and threw it in the trashcan. The incident lasted no longer than a
minute.
Anthony Trinh: Anthony Trinh, second shift leader since
early August, testified that after he was transferred to the second shift, he
saw employees playing soccer four or five times. The first time, he saw Bui,
Loi Nguyen, Vong, and Trinh. He told
them not to play soccer any more and to return to work, which they did. The
next day, Anthony Trinh saw Trinh, Vong, Phuong Nguyen, and Loi Nguyen kicking
two objects back and forth: masking tape wrapped into a round shape like a ball
(the tape-ball) and a cone.29 Again, he told them
to go back to work; three complied, but Trinh just laughed at him. On the last
occasion, Anthony Trinh saw Loi Nguyen, Vong, Bui, and Trinh playing soccer and
let Au know.
At the fixer
meeting, Galan asked Martin Bui if had had seen employees playing soccer, and
Martin Bui named the three he had seen.
Galan said he had seen five; he named them and asked Martin Bui to write
their names. According to Galan, he told Martin Bui and Anthony Trinh that since
the employees continued playing despite earlier warnings, he would have to
leave a note for Orriols.30
Galan wrote a note
in Spanish, stating that five employees had been playing soccer in the plant at
about 8:45 p.m. on August 12. Galan had
Martin Bui write the names of Frankie Trinh, Tuan Bui, Hung Vong, Loi Nguyen,
and “Phuong (Fixer)” on the note, as Galan did not know all of them. Galan left the note along with the balls on
Orriols’ desk.
The facility was
closed the weekend following Friday, August 12 from 6 a.m. on Saturday until Monday,
August 15. On Monday, August 15, Orriols found on his desk the thread balls and
the note from Galan. Orriols took the
thread balls and the note to Au, who said she would look into the matter. When
Olea came to work, Orriols showed him the thread balls and Galan’s note and
told him that Au was investigating the situation.
On Tuesday, August
16, Au reported her findings to Olea.31
She told Olea that Martin Bui, Carlos Galan,
and Anthony Trinh had witnessed employees playing soccer, but she was unclear
as to specifics, reporting that “maybe one saw two, maybe one saw three, maybe
one saw five of them, and maybe they all saw five.”
Olea arranged for
Martin Bui, Carlos Galan, and Anthony Trinh to meet with him. During their
meeting, according to Olea, Carlos Galan
told Olea that he had seen the five employees named on the note playing soccer,
that the employees set up two cones as goal markers and kicked the larger
thread ball trying to score goals, and that
Galan had reported it to Ly,
thinking he would take care of it.32
According to Olea, Martin Bui said he had seen
the five employees playing soccer and had told Phuong Nguyen to stop but had
not reported it to management, as he thought if he did so, Ly would tell the employees and he would be
in trouble.33 According to Olea, Anthony Trinh said he had
seen employees playing soccer on the second shift following his transfer about 2
weeks earlier but had not reported it because he wanted to see if he could work
it out on his own.34 After meeting with the three shift leaders, Olea
asked them to document their observations.
Following his
meeting with Carlos Galan, Anthony Trinh, and Martin Bui, Olea asked Ly about
soccer playing on the second shift. By Olea’s
account, the inquiry was brief: “I brought [Ly] into my office and I asked him
if he knew of any of this that was going on, the playing of soccer. He denied it. He said no, he’d never seen them
play soccer.” By Ly’s account, he informed (or reminded) Olea
that he had been transferred earlier from the second to the first shift and
told Olea that he no longer knew what
took place on second shift. Ly told Olea
he had never seen Tuan D. Bui, Loi Tan Nguyen, Phuong Hoang Nguyen, Frankie
Trinh, or Hung Vong play soccer at work.
By separate notes,
each dated August 17, Carlos Galan, Anthony Trinh, and Martin Bui documented
their observations for Olea. The notes, respectively, read in pertinent part:
I saw these 5 employees playing soccer inside the plant on 8/12/05 at 8:45 P.M. I saw employees Franki put the ball in the trash. I seen them playing soccer couple time before. Employees: name Loi Nguyen, Tuan Bui, Hung Vanh Vong, Phuong Nguyen, Franki Trinh.
Lead Carlos Galan
Aug/05/2005
1. F. Trinh verbal warning35
2. Tuan–Bui
3. Hung–Vong
4. Loi–Nguyen
Aug/08/2005
1. Tuan–Bui verbal warning
2. Loi–Nguyen
3. Phuong
Aug/12/2005
1. Tuan–Bui
2. Hung–Vong
3. Phuong Leadperson: Anthony Trinh36
On 8/12/05 at 8:55 PM, I saw 3 operators played soccer. They were Phuong Nguyen (Fixer), Tuan Bui, Hung Vanh Vong. I said, “Phong! Stop this game because not right to play” After that I saw him put the ball into the trash. Many times before, I seen 5 operators play soccer inside the plant. They were 1/ Phuong Nguyen, 2/ Tuan Bui, 3/ Hung Vanh Vong, 4/ Loi Nguyen, 5/ Franki Trinh. I had verbal warning twice times with Phuong Nguyen. First time I don’t remember the date and second time on 8/12/05.
After receiving the
notes, Olea consulted Respondent’s safety specialist, Kahn, explaining that
witnesses had seen five employees kicking a yarn ball in the middle of the
aisle where they had set up thread cones.
Kahn reminded Olea that Respondent had a zero tolerance policy for such
conduct and agreed with Olea that the five should be terminated. Olea then discussed the matter with Au and
Orriols, both of whom agreed the employees should be terminated.
On August 18 while
at work, Bui, Loi Nguyen, Phuong Nguyen, Trinh, and Vong were directed to go to
the company training room. As the other employees waited in the training room,
each was called separately into Olea’s office where Olea, Orriols, and Au were
present. Each employee interview followed essentially the same pattern: Olea
showed each employee the thread balls and asked each employee if he had played
soccer with them while working. After each employee denied having done so, Olea
told the employee he was fired, presented him with his final check, and had him
escorted from the facility.
Bui, Loi Nguyen,
Phuong Nguyen, Trinh, and Vong each denied ever playing soccer or any game with
balls of string/ thread while at work, although Phuong Nguyen admitted to
pushing aside the thread that accumulated on the floor, as did all employees,
to avoid slipping. Bui, Loi Nguyen,
Phuong Nguyen, and Vong denied having been admonished or warned about any such
activity. Trinh admitted that one
evening shortly before his discharge, while he was working, Galan told him not
to play soccer or “not to kick the ball,” which Trinh denied having done.
Phuong Nguyen and Bui, each asked to confront his accuser/accusers during his
termination interview, which request Olea refused.
After considering
all testimony regarding employee soccer playing at work, I find the denials of
Bui, Loi Nguyen, Phuong Nguyen, Trinh, and Vong more credible than the
accusations of Galan, Martin Bui, and Anthony Trinh. Au initially interviewed the three to
ascertain the basis for Galan’s note to Orriols. Presumably, Au was disposed to give credence
to their versions. After speaking with the three, however, she was unable to
report clearly who had seen which employees playing soccer.37 Au’s report to Olea that “maybe one [of the
shift leaders] saw two, maybe one saw three, maybe one saw five of them, and
maybe they all saw five” justifies an inference that the three shift leaders’
accounts, given soon after the alleged soccer playing, were ambiguous if not
contradictory. At the hearing, the three shift leaders’ testimony of what they
had seen continued to be unclear and inconsistent. Galan reported seeing the five alleged
discriminatees playing soccer with a ball of yarn on August 12, using cones set
up on either side for goals, but Martin Bui saw only three, and Anthony Trinh
saw four, although both they and Galan saw the soccer playing at essentially the
same time.38 Moreover, Galan apparently reported an
extended period of soccer playing while Martin Bui said it lasted no more than
a minute. Further, although Galan and Martin Bui reported seeing Trinh put the
yarn ball into the trash, Anthony Trinh insisted he saw a masking-tape ball not
a yarn ball being used. Unlike Galan, neither Martin Bui nor Anthony Trinh
described cone goals. The written reports of the three witnesses regarding the
August 12 soccer playing were equally inconsistent. Galan reported seeing all five playing soccer
but said nothing about cone goals, while Martin Bui and Anthony Trinh reported
seeing three employees playing soccer, not the five Galan reported. I find,
therefore, that Bui, Loi Nguyen, Phuong Nguyen, Trinh, and Vong did not engage
in horseplay at work to the degree or the frequency described by Galan, Martin
Bui, and Anthony Trinh.39
Following his
discharge, the California Unemployment Insurance Appeals Board held a hearing
regarding Trinh’s claim for unemployment benefits.40 In Respondent’s March 6, 2006 appeal from the
Appeals Board’s grant of benefits to Trinh, Olea described the yarn-ball soccer
playing as a full-blown soccer game:
There was a goalie tending a goal where two spools of yarn were used as goal poles. The goalie defended the goal by trying to stop the ball from crossing the imaginary line by diving for the ball or kick[ing] the ball with his feet. The opposing player was moving the ball with his feet trying to fake one way and going the other way to kick the ball of yarn between the two spools of yarn. The other players would rotate in when a player would not score.41
3. August
18 discharge of Kiet Tuan Ly
On August 18, Ly
was again called to Olea’s office. With
Au translating, Olea told Ly that because he had permitted employees to kick
balls while he was the second-shift lead, he was fired. Olea presented Ly with a termination notice,
which, in pertinent part read:
Termination due to failure to perform his duties as a lead person to enforce the company rules; allowing the employees to play soccer in the plant; and allowing it to occur and continue on various occasions.
In spite of Galan,
Martin Bui, and Anthony Trinh having, reportedly, seen employees play soccer
during work over the course of several weeks, none was disciplined in any way
for having permitted the horseplay.
Indeed, there is no evidence that Olea or Orriols thereafter conducted
any counseling or training with the three shift leaders concerning workplace misconduct
or reporting procedures.
iv. discussion
A. Supervisory/Agency Status of Kiet Tuan Ly
Respondent contends that Ly was, at all relevant times, a supervisor within the meaning of Section 2(11) of the Act. Respondent carries the burden of proving supervisory status. Kentucky River Community Care, 532 U.S. 5 706, 711–712 (2001); Dean & Deluca New York, 338 NLRB 1046, 1047 (2003) (“The party asserting [supervisory] status must establish it by a preponderance of the evidence [citations omitted]”). Thus, Respondent must establish that Ly had the authority to exercise at least one of the powers enumerated in Section 2(11) of the Act and that the use of that authority involved a degree of discretion that rises to the level of “supervisory independent judgment.” Dean & Deluca New York, supra at 1247, citing Elmhurst Extended Care Facilities, 329 NLRB 535, 536 fn. 8 (1999). As the Supreme Court noted, “The statutory term ‘independent judgment’ is ambiguous with respect to the degree of discretion required for supervisory status…It falls clearly within the Board’s discretion to determine, within reason, what scope of discretion qualifies.”42 The Board is careful not to give too broad an interpretation t