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,
Industrial Hard Chrome, Ltd., Bar Technologies
LLC, Fluid Power Manufacturing, and
United Steelworkers of
March 31, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On February 27, 2007, Administrative Law Judge George Alemán issued the attached decision. The Respondent filed exceptions and a supporting brief; the General Counsel filed an answering brief. The General Counsel filed cross-exceptions and a supporting brief; the Respondent filed an answering brief.
The National Labor Relations 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,1 and conclusions as amended,2 and to adopt the recommended Order as modified.3
We have amended Conclusion of Law 2 and the remedy section
of the judge’s decision, and modified the judge’s recommended Order, as set
forth below, to delete quality control
inspector Phanvilay (Hit) Sundara from the judge’s list of unlawfully
discharged employees entitled to reinstatement and backpay.4 We have substituted a new notice to conform
to the modified Order.
Amended Conclusion of Law
We substitute the following for Conclusion of Law 2.
“2. By discharging employees Paris Figueroa, Heraclio Arizaga, Adan Guerra, Leonel Hernandez, Eduardo Nava, David Nuñez, Silverio Corona, Juan Peña, Porfirio Huerta, Ramon Gonzalez, Juan Nieves Jr., Jesus Salgado, Boualoth Hansana, Agustin Morales, Saybandith K. Sundara, Oudavone Hansana, David Soto, Southone Cavan, and Ruben Romero for engaging in a lawful work stoppage, the Respondent violated Section 8(a)(1) of the Act.”
Amended Remedy
We substitute the following for the second paragraph of the remedy section of the judge’s decision.
“To remedy its
unlawful discharge of Paris Figueroa, Heraclio Arizaga, Adan Guerra, Leonel
Hernandez, Eduardo Nava, David Nuñez, Silverio Corona, Juan Peña, Porfirio
Huerta, Ramon Gonzalez, Juan Nieves Jr., Jesus Salgado, Boualoth Hansana,
Agustin Morales, Saybandith K. Sundara, Oudavone Hansana, David Soto, Southone
Cavan, and Ruben Romero, the Respondent shall be required to, within 14 days
from the date of the Order, offer them reinstatement to their former positions,
or, if their positions no longer exist, to substantially equivalent positions,
without prejudice to the rights and privileges they previously enjoyed.”
Order
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified below and orders that the
Respondent, Industrial Hard Chrome, Ltd., Bar Technologies LLC, and Fluid Power
Manufacturing,
1. Substitute the following for
paragraph 2(a).
“(a) Within 14 days from the date of the Board’s Order, offer Paris Figueroa, Heraclio Arizaga, Adan Guerra, Leonel Hernandez, Eduardo Nava, David Nuñez, Silverio Corona, Juan Peña, Porfirio Huerta, Ramon Gonzalez, Juan Nieves Jr., Jesus Salgado, Boualoth Hansana, Agustin Morales, Saybandith K. Sundara, Oudavone Hansana, David Soto, Southone Cavan, and Ruben Romero full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.”
2. Substitute
the following for paragraph 2(b).
“(b) Make Paris Figueroa, Heraclio Arizaga, Adan Guerra, Leonel Hernandez, Eduardo Nava, David Nuñez, Silverio Corona, Juan Peña, Porfirio Huerta, Ramon Gonzalez, Juan Nieves Jr., Jesus Salgado, Boualoth Hansana, Agustin Morales, Saybandith K. Sundara, Oudavone Hansana, David Soto, Southone Cavan, and Ruben Romero whole for any loss of earnings and other benefits resulting from their unlawful terminations in the manner set forth in the remedy section of the decision.”
3. Substitute the attached notice for that of the administrative law judge.
Dated,
Peter C. Schaumber, Chairman
Wilma B. Liebman, 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
you with discharge for engaging in protected concerted activity.
We will not seek to undermine your
support for the United Steelworkers of America, AFL–CIO, CLC, which is your
duly certified collective-bargaining representative, by telling you that you do
not have union representation; and We will not, without justification, take
photographs of your lawful picketing activities or engage in any other
surveillance of your protected concerted activities.
We will not discharge or otherwise
discriminate against you for engaging in a protected work stoppage to protest
supervisory mistreatment of employees, or for engaging in any other protected
concerted activity.
We will not institute and implement an
employee assistance plan (EAP) without first giving the United Steelworkers of
America, AFL–CIO, CLC, which is your exclusive bargaining representative, prior
notice and an opportunity to bargain over such a plan.
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, on request from the Union,
rescind the EAP program we instituted on June 13, 2006, and bargain in good
faith with the
We will, within 14 days from the
date of this Order, offer Paris Figueroa, Heraclio Arizaga, Adan Guerra, Leonel
Hernandez, Eduardo Nava, David Nuñez, Silverio Corona, Juan Peña, Porfirio
Huerta, Ramon Gonzalez, Juan Nieves Jr., Jesus Salgado, Boualoth Hansana,
Agustin Morales, Saybandith K. Sundara, Oudavone Hansana, David Soto, Southone
Cavan, and Ruben Romero full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions, without prejudice
to the seniority or any other rights or privileges they previously enjoyed.
We will make Paris Figueroa,
Heraclio Arizaga, Adan Guerra, Leonel Hernandez, Eduardo Nava, David Nuñez,
Silverio Corona, Juan Peña, Porfirio Huerta, Ramon Gonzalez, Juan Nieves Jr.,
Jesus Salgado, Boualoth Hansana, Agustin Morales, Saybandith K. Sundara, Oudavone
Hansana, David Soto, Southone Cavan, and Ruben Romero 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 Paris Figueroa, Heraclio Arizaga, Adan Guerra, Leonel Hernandez, Eduardo
Nava, David Nuñez, Silverio Corona, Juan Peña, Porfirio Huerta, Ramon Gonzalez,
Juan Nieves Jr., Jesus Salgado, Boualoth Hansana, Agustin Morales, Saybandith
K. Sundara, Oudavone Hansana, David Soto, Southone Cavan, and Ruben Romero, 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.
Industrial Hard Chrome, Ltd., Bar Technologies Llc, Fluid Power
Manufacturing
Ed Castillo
and Elizabeth Cortez, Esqs., for the
General Counsel.
Bruce Mills and Julia Proscia, Esqs., for the Respondent.
Anthony Alfano, Esq., for the Charging Party.
DECISION
Statement of the Case
George Alemán,
Administrative Law Judge. This case was
tried in
Specifically, the complaint alleges that the Respondent violated
Section 8(a)(1) of the Act by threatening employees with discharge because they
engaged in union or other protected concerted activity; by telling them they
did not have union representation, and by engaging in unlawful surveillance of
their union activities. It further alleges
that the Respondent violated Section 8(a)(3) and (1) by verbally, and
thereafter in writing, terminating several employees who walked off the job to
protest their mistreatment by Daniel Bustamante, an admitted supervisor and
agent of the Respondent. Finally, the complaint
alleges that the Respondent violated Section 8(a)(5) and (1) of the Act by
unilaterally, and without prior notice to the
All parties at the hearing were afforded a full and fair opportunity to be heard, to present oral and written evidence, to examine and cross-examine witnesses, and to argue orally on the record. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following
Findings of Fact
i. jurisdiction
The Respondent is an
ii. alleged unfair labor practices
A. Factual Background
1. The Employee Assistance Program (EAP)
The Respondent has three operational divisions at its
Fred Parker is the Respondent’s superintendent and general manager and has overall responsibility for its operation. Richard Peterson is Vice-President of Production in charge of operations and manufacturing, James Segerson is Vice-President of Sales and Marketing, Bruce Busse is Respondent’s plant manager, and Daniel Bustamante a first shift supervisor. Betty Axelsen is employed in Human Resources, although the record does make clear what her position is in that department.
The Respondent and the Union began contract talks following
the
At some point during the negotiations, sometime in early March according to Trone, the parties began addressing the various Company policies in effect, one of which was its Drug and Alcohol policy. On March 3, Parker sent Trone an e-mail containing a copy of the Respondent’s policy statements and plant rules as attachments. On receipt of the documents, Trone reviewed the Drug and Alcohol policy that came as an attachment, and found that the Respondent did not have an “employee assistance plan” (EAP) for employees. During a March 13, bargaining session, Trone asked Parker if the Respondent had an EAP program for employees, and described to him the benefits of such a program. Parker answered that the Company’s health insurance program addressed such employee issues and indicated that he did not favor instituting an EAP program.
Trone testified that the next time the EAP program was raised as an issue occurred following a fatal employee accident at the facility on May 31. Trone recalls that on May 31, he was involved in contract talks with another company when he received a phone call from Parker informing him of the accident. As negotiations were scheduled for June 1, Trone asked for a postponement of the negotiations in light of the accident, and Trone agreed. The next bargaining session was scheduled for June 8, but a few days before June 8, Trone received a call from Parker again asking for a postponement because the accident was still fresh in the minds of employees. In the days following the accident, the Respondent called in crisis counselors from TriCity Family Services, a county agency, to help employees cope with the death of their fellow co-worker.
On June 13, Trone received an e-mail from Parker reminding
Trone about a proposed meeting scheduled for June 23. In his e-mail, Parker told Trone that as a result of the accident, the
Respondent realized it did not have a “formal” EAP program in place, and that
It had, consequently, discussed and agreed to have TriCity Family Services
launch an EAP program for employees that same week. A copy of the agreement entered into between
the Respondent and TriCity Family Services that same day, June 13, was received
into evidence as GCX-14. In his memo,
Parker admits being advised by legal counsel that the EAP program was a matter
that needed to be negotiated with the Union, but that because of the Company’s
“need for the program and the critical timeliness, we are confident the Union
will not have an issue.” (GCX-2). Trone testified that at no time before implementing
the EAP program did the Respondent ever inform him or the Union of the Kane
County agency referred to by Parker in his memo, nor had it notified the Union
of the services that would be available to employees under the program. Trone
replied to Parker’s e-mail, and sent
A bargaining session was held on June 23, which
2. The work stoppage
The record reflects that the Respondent maintained two work shifts, from 6 a.m.–6 p.m., and from 6 p.m.–6 a.m. Employees in each shift received four 15 minute break periods, the start and end of which were signaled by the sound of a bell. (See, RX-7). Several employees testified as to the practice regarding the break periods. Figueroa, a machine operator on the second shift at IHC, testified that employees usually began heading toward the break area some two to three minutes before the break bell rang in order to wash up. (Tr. 26). Heraclio Arizaga, also a machine operator on the 2nd shift at IHC, similarly testified to leaving for break a few minutes before the bell rang in order to use the washroom, but that he did not do so that often. He further testified that at no time before June 23, was he spoken to or told to stop his occasional practice of leaving for break before the break bell rang. (Tr. 108). IHC machine operator, Eduardo Nava, testified that he and others had been leaving for break to wash up five minutes before the break bell rang ever since November 2004, when he first began working for Respondent. (Tr. 278).
Bustamante became a supervisor on the second shift in May 2005. During his tenure, Bustamante was reassigned from second shift to the first shift, and then back to the second shift on Monday, June 19. On returning to the second shift, Bustamante supervised some 14 employees. He contends that from the first day back to the second shift, he noticed that employees were returning from their breaks after the bell had sounded for them to return. He explained that the policy regarding breaks was that employees were to take no more than 15 minutes for their break periods. However, he also testified that during his one year as supervisor on the second shift, he frequently observed employees leaving for break “a couple of minutes” before the break bell rang, but never disciplined any employee for these alleged infractions of the rule. Bustamante claims that at no time during his one year as supervisor did he ever observe any first shift employees leaving early for, or returning late from, their scheduled 15-minute breaks, and that it was the second shift employees who engaged in said conduct (Tr. 397–398; 425).
Bustamante claims he told the second-shift employees that first day back on second shift that they were taking too long on breaks and that they were not to take anything more than 15 minutes for their breaks. He testified that while he had not made much of the fact that employees had, in the past, left a few minutes early and returned a few minutes late from their breaks, it was only after these few minutes were lengthened to about five minutes that he decided to begin a stricter enforcement of the 15-minute break period. (Tr. 427, 429). The employees, however, continued the practice of going on break a few minutes early and returning a few minutes later from breaks for several more days. On Thursday, June 22, Bustamante claims he again spoke to the employees and cautioned that he would issue written warnings to them if they continued with the practice. On Friday, June 23, presumably after noticing that employees had not heeded his warning, Bustamante prepared written warnings to be issued to all second shift employees. Before doing so, he discussed the matter with Busse on the following Monday, June 26, who agreed that Bustamante should proceed with the warnings. (Tr. 399). Busse signed off on the warnings (See RX-8). Attached to the warnings was a memo prepared by Busse on June 26, and posted next to the employee time clock, explaining the break policy, advising that it had come to his attention that employees were not adhering to the policy, that they should consider the memo to them as a warning, and cautioning that they could face “further disciplinary action, up and including termination” if they disregarded the warning and continued with their practice. In all, some 12 employees had written warnings prepared on them.
Bustamante contends that when he tried to distribute them to the affected employees, the latter refused to sign or accept the warnings. For example, he explained that when he tried to give employee Paulo Lazarini the warning, Lazarini declined to accept it, claiming that it was unfair. Lazarini, according to Bustamante, then called other employees who gathered around Bustamante’s work station. Bustamante then told the other employees that since they were already present he would give them their warnings also. The employees, however, declined to accept them and asked to speak with Busse. The employees accused Bustamante of trying to intimidate them and of being unfair, and insisted on speaking with Busse. Bustamante then called for Busse, and learned that he was in Axelsen’s office. When he contacted Axelsen, he asked her to send Busse, along with Parker, down to speak with the employees. (Tr. 405). Busse arrived some five minutes later, accompanied by Parker.
On meeting with the employees, Busse reminded employees of
the 15-minute break policy. According to
Bustamante, several employees complained that he (Bustamante) was not being
fair, and was simply trying to intimidate and pick on them by issuing them
warnings. Busse purportedly replied that
rules are rules and must be followed.
The employees also told Busse that Bustamante was disrespectful to them,
and when Busse asked how the latter was being disrespectful, one employee
replied that Bustamante regularly told them he was the boss and could do
whatever he wanted. Busse purportedly
told employees they had elected a union to represent them, and that if they had
a problem they should have the
Parker gave a similar account. He recalls being present when Busse spoke to
the employees. Busse, he explained, told
employees during that encounter about the 15-minute break policy and that
warnings had indeed been prepared for them.
He contends that employees began complaining that Bustamante was
treating them unfairly regarding the break periods, but Busse reminded them
that this was the rule, and that if they had a problem with it, they should
take it to the
The following day, June 27, an incident occurred between Bustamante and Arizaga. Arizaga was supervised by Bustamante from the start of his shift at 6 p.m. until midnight, and by supervisor Ben Campos from midnight to 6 a.m. Arizaga testified that on June 27, he arrived for work at 5:45 p.m. and went directly to his locker to retrieve his steel-toed shoes and waited for the bell to ring announcing the start of the shift. When the bell sounded, Arizaga, as was the practice, walked to supervisor Bustamante’s station, accompanied by another employee, Oscar, to get his earplugs and gloves. Arizaga claims that as he and Oscar walked by Bustamante, the latter remarked aloud in Spanish, “There’s a bunch of crybabies, Who is the worst crybaby of all?” Arizaga took personal offense at Bustamante’s remark, believing it was being directed at him, and asked Bustamante if he intended the remark to be for him, and that if Bustamante had a problem with him, the latter should let Arizaga know and discuss the matter with him directly without calling him names. Bustamante, according to Arizaga, replied that Arizaga knew why Bustamante was calling him a “cry baby,” to which Arizaga replied that he did not know. Arizaga claims that Bustamante was, by now, becoming loud and went on to say that Arizaga should “be a man” and not be “a little girl,” and that Arizaga should tell the truth and admit that he knew what Bustamante was referring to. Arizaga claims that he too began raising his voice and then began walking away, mumbling under his breath as he did so. Bustamante, believing that Arizaga had said something about him, angrily approached Arizaga and asked what he had said. Arizaga responded that he had not said anything and was simply going to his work station. Bustamante, he contends, apparently did not believe Arizaga and, as the latter continued heading towards his workstation, Bustamante followed him and, in a loud voice, insisted on knowing what Arizaga had said. When Arizaga answered that he was going back to his work station, Bustamante told him, “You know what, just go home, you’re fired because with your little attitude, I can’t take it.”
At one point during their exchange, Bustamante, according to Arizaga, bumped his chest into Arizaga’s chest, which Arizaga took as a threat and prompted him to back away from Bustamante. Arizaga then turned to several employees who were nearby and commented that Bustamante was firing him for no reason. Bustamante responded by saying that he could fire any “dumb asses” that he wanted to. Arizaga took offense at Bustamante’s description of him as a “dumb ass,” and headed towards the time clock. He contends that as he was heading to the time clock, employee Nava and other employees approached and asked him not to clock out, that they had had enough and wanted to speak with someone higher up in management than Bustamante. At some point, Bustamante allegedly approached Arizaga again near the time clock, and got real close to him, enough so that, according to Arizaga, he could feel Bustamante spraying him with saliva as he told Arizaga that the latter would remember Bustamante as he was going to make sure Arizaga got fired. (Tr. 118–120). Arizaga claims that employee Nava was nearby and would have heard Bustamante’s remark. Arizaga claims he did not respond, and that, a short while later, quality control employee Phanvilay Sundara, known to employees simply as “Hit” and apparently a friend of Bustamante,3 came over and pulled Bustamante aside to speak with him. Arizaga claims that following “Hit’s” conversation with Bustamante, the latter returned a short while later and appeared calm. According to Arizaga, Bustamante, in a calm voice, told employees he was giving them five minutes to return to work. Arizaga assumed it meant he too was to return to work, although he still believed he had been fired. Figueroa, however, purportedly told Bustamante that they were not returning to work until they spoke with someone with more authority than Bustamante.
Arizaga contends that not long afterwards, as Bustamante passed by him presumably on his way to the restroom, he again called Arizaga a “cry-baby” or “cry-girl” or something to that effect, and that, while he did not respond for fear of further provoking Bustamante, “Hit”, who apparently overheard Bustamante, commented to another employee named Gino Velasquez that this was not how a supervisor should react to an employee. (Tr. 125). After that exchange, he and the other second shift employees went outside the facility and sat around some benches in the break area to wait for some higher management official to come and speak with them.
Figueroa claims he witnessed some of what occurred between Arizaga and Bustamante that day. Thus, he testified that he was walking behind Arizaga and overheard the two arguing loudly. He contends that at one point during their exchange, Arizaga told Bustamante, “If you have the balls, tell it to my face if you are talking about me,” and Bustamante replied, “Yes, I’m talking about you, and you know what I am talking about.” (Tr. 30). This exchange continued until Arizaga told him he was going to his workstation and began walking away. As he did so, Bustamante, believing that Arizaga had said something about him, approached Arizaga and asked what he had said under his breath. Arizaga answered that he had only commented that he was returning to work, but Bustamante refused to accept his answer and insisted on knowing what, if anything else, Arizaga might have said. Figueroa claims that at this point, Bustamante got up close to Arizaga, about one inch away, and told the latter that he would fire him during the weekend and threatened that Arizaga would not be there tomorrow. When Arizaga asked why he wanted to fire him, Bustamante answered only, “You know why.” According to Figueroa, this latter exchange was provoked by Bustamante. Figueroa claims he tried to convince Bustamante to discuss the matter with Busse the following day and not to fire Arizaga. Bustamante, however, did not respond to Figueroa’s suggestion.
In the interim, employees began gathering around and one employee, Porfirio Huerta, told Figueroa in Spanish, which the latter translated to Bustamante in English, that the employees wanted to speak with the owner, and that if they were not allowed to speak with the owner, the employees would walk out. Bustamante purportedly told employees that no one was going to come or would listen to them, and that, if they walked out, they would all lose their jobs. Figueroa explained that, in threatening to walk out, employees were reacting to Bustamante’s treatment of Arizaga and to what they perceived to be Bustamante’s general mistreatment of employees. He recounted how employees disapproved of Bustamante’s regular practice of threatening them with discharge if they did not do as he asked. (Tr. 34–35; 39). On hearing Bustamante’s threat, the employees, totaling about 18 in number, walked away and congregated around the time clock for some 15 minutes. Bustamante then came over and told employees that Parker would be coming to speak with them. Employees at that point exited the building and went over to the break or picnic area to wait for Parker. Figueroa, like Arizaga, recalls seeing “Hit” on several occasions trying to calm down Bustamante.
“Hit” confirmed Arizaga’s and Figueroa’s testimony. Thus, he testified to witnessing an exchange between Bustamante and Arizaga as the latter was walking to his work station, saw Bustamante get real close to Arizaga to the point where Bustamante’s chest touched Arizaga’s shoulder, and heard Bustamante tell Arizaga in a loud voice, “Be a man, don’t be a woman, tell me the truth.” “Hit” pulled Bustamante aside, asked him what was doing, and then tried to calm him down. Bustamante, he contends, told him that Arizaga had said something and he wanted to know what it was. When Bustamante tried to go back to Arizaga, “Hit” pulled him back and, in the presence of employee Gino Velasquez, told Bustamante, “Relax, okay, your temper is [getting] higher and higher.” Bustamante again explained that Arizaga had said something to his co-worker, Oscar, but that he, Bustamante, believed it was really directed at him and he wanted to know what it was Arizaga had said. Bustamante, according to “Hit,” admitted that Arizaga had not said anything to him directly. “Hit” then offered to go talk to the employees to encourage them to return to work, but Bustamante stated that they were waiting for Parker or Petersen to come and talk to them, but that he did not believe either would come as it was too late in the day. According to “Hit,” Bustamante’s temper again flared up and he told “Hit” to go tell the employees, who Bustamante described as a “bunch of fucking crying baby and one fucking woman,” to return to work and he would forget what happened. “Hit” again tried to calm Bustamante, and asked Velasquez if he had heard what Bustamante had said about the employees, and the latter replied he had. “Hit” then left to ask Arizaga what had transpired. Bustamante, however, approached “Hit” and instructed him to return to work because Parker and Petersen were coming, and if they found “Hit” with the group, they would fire him. “Hit” agreed and returned to work. At one point during this entire exchange, “Hit” recalled Bustamante telling Arizaga that he should return to work or he will be fired. He further recalled another incident Bustamante had with another employee, Luigi, about a year earlier (the “Luigi incident”), during which Bustamante began yelling at Luigi to return to his work station or he would be fired. “Hit” contends that during that earlier incident, he again had to calm down Bustamante. (Tr. 242–244; 247–248, 250).
Bustamante, not surprisingly, gave a somewhat different version of the incident with Arizaga. He testified that as Arizaga and his co-worker Oscar passed by his supervisory work station, Arizaga commented aloud to Oscar, “Those damn tattle-tale, crying women, they always got to do it.” On hearing this, Bustamante remarked, “Yeah, yeah, you’re right, you know, those damn, tattle-tale women, they always got to do it.” Arizaga, he contends, turned to him and said, “if you have something to say, go ahead and say it,” to which Bustamante replied, “You know what you are saying.” Arizaga then asked Bustamante, “Did I say your name?”, and Bustamante replied, “No, but I know you are talking about me, so cool it.” Bustamante claims that Arizaga began arguing with him at that point, and that he too began to argue with Arizaga, but that he soon thereafter told Arizaga to go back to work, and the latter complied. Bustamante, however, contends that as he was returning to work, Arizaga, called him a “fucking dude.” When he asked Arizaga to repeat what he had said, Arizaga answered he had said something else, and did not mean it, at which time Bustamante allowed him to return to work.
Bustamante claims that after Arizaga left for his work station, other employees gathered around him and began complaining that he was picking on Arizaga. Arizaga, he contends, returned seconds later and Bustamante told him, “I thought I just sent you to your work station.” Arizaga answered that he wanted to be part of the meeting, and Bustamante replied that he had not called any meeting and that none was taking place. Arizaga purportedly replied that he was going to stick around anyway. Bustamante then directed Arizaga to return to work and if he didn’t, he was going to send Arizaga home. Arizaga asked, “Oh, are you firing me?”, and Bustamante answered he was not, but that he would send Arizaga home if he refused to return to work. Bustamante claims that while he has authority to suspend an employee for a day for breaking Company rules, he lacks authority to fire anyone. (Tr. 409). There is, however, no evidence to suggest that employees knew that Bustamante lacked such authority.
Bustamante contends that Arizaga then began, and thereafter continued, arguing with him, at which point he directed Arizaga to go home and to return the following day and speak with Busse. Arizaga purportedly turned to the other employees and told them, “You guys saw it, he fired me, you guys are my witnesses.” (Tr. 411). Arizaga then began heading towards the time clock, followed by Bustamante. As they did so, other employees followed them, explaining to Bustamante that they too were going along because Bustamante had been picking on Arizaga and that, tomorrow or some other day, it might be one of them that gets picked on by Bustamante (Tr. 411). Bustamante purportedly told the employees to return to work, that this was between him and Arizaga, but the employees responded, “No, this has to do with all of us, we’re not moving [or] going back to work until you call Parker or Busse.” Bustamante told employees he was not going to call either of them because employees had already spoken to Busse the day before, that there was nothing more for either Parker or Busse to say to them, that they should return to work, and that they risked losing their jobs if they did not do so. (Tr.434–435). Instead of returning to work, the employees left the facility and congregated outside in the break or picnic area situated between IHC and the Bar Tech facility. Bustamante admits becoming a little angry or irritated during this incident, but denies that he became very angry or explosive. He does, however, admit that “Hit” tried to calm him down by telling him to “cool it” as employees began heading towards the time clock with Arizaga. (Tr. 412).
I credit Arizaga and Figueroa over Bustamante and find that it was the latter who provoked an argument with Arizaga by calling him a “cry-baby” as the latter went to Bustamante’s work station to obtain his equipment and supplies. By either Arizaga’s or Bustamante’s account, it is clear that it was Bustamante who interjected himself into a conversation Arizaga was having with a fellow employee. Bustamante, according to his own account, simply assumed Arizaga was referring to him when the latter purportedly made the “crying women” comment to a co-worker, and initiated the argument that ensued by accusing Arizaga of talking about him. Thus, Bustamante’s own testimony makes clear that he did not know, and simply assumed, that he was the subject of the personal conversation Arizaga was having with his co-worker. I do not, in any event, place any credence in Bustamante’s testimony regarding his exchange with Arizaga. Bustamante came across as unreliable and insincere. His claim, for example, that he only became “a little bit irritated,” or “a little bit aggravated but not angry” during his exchange with Arizaga, is simply not credible, and is at odds with Hit’s description of Bustamante as being very loud and whose temper continued to rise and became very high during the incident. Hit, as noted, had to pull Bustamante away on at least two occasions to try and calm him down. In sum, Bustamante’s testimony regarding his exchange with Arizaga is rejected. Bustamante’s depiction of himself as being only a “bit irritated” is also disputed by employee Nava who credibly described Bustamante as being “very, very upset,” “very angry,” and “yelling real loud” that he wanted to fire Arizaga. (Tr. 291; 296). I find, instead, that it was Bustamante who initiated and provoked the exchange by interjecting himself in Arizaga’s conversation with his co-worker and calling Arizaga a “cry-baby” or some other inappropriate name. I am also convinced that, as credibly testified to by Arizaga and “Hit”, Bustamante, at one point during his exchange with Arizaga, made physical contact with Arizaga. The record does not make clear what, if anything, might have provoked Bustamante to confront Arizaga, but it would not be too far-fetched to surmise that Bustamante might have been unhappy with the fact that the warnings he wanted to issue to the second-shift employees the day before had been rescinded by Busse. Regardless of the reason for Bustamante’s provocation of Arizaga, it is clear that it was this particular incident, which the second-shift employees viewed as abusive behavior by Bustamante, which prompted employees to stop working, and to congregate outside in the break area, until they had a chance to address their concerns about Bustamante with higher management officials.
Bustamante claims that, once outside, he told employees that if they refused to return to work, they would have to clock out and leave. The employees, however, declined to punch out, insisting instead that they were staying put until they spoke with Parker or Busse. Bustamante then went inside to try and figure out what to do next. He got hold of employee Gino Velasquez to serve as a witness in the event something else transpired with the employees. He contends that when he returned to the time clock area, Arizaga complained that Bustamante had pushed him and that he had witnesses to the event. Other employees present, according to Bustamante, also claimed to have seen it and that Bustamante could call the police if he wanted to because he, not them, would get into trouble. Bustamante denied ever touching or hitting Arizaga, but admits becoming angry and, at one point, standing only about six inches from Arizaga. (Tr.408–409; 414).
After he and other employees left the facility and gathered
in the break area, Figueroa called Union representative
In the meantime, Bustamante, following his encounter with Arizaga and the employee walkout, notified Busse at home and informed him of what was going on. Busse told Bustamante to hold everything at bay if he could, that he was on his way to the facility, and to notify Parker and call him back after doing so. Bustamante then called Parker as instructed and, after doing so, called Busse again. Busse, Parker and Peterson, who was called by Parker, arrived some 30 minutes later. On their arrival, Bustamante told the managers about the incident between himself and Arizaga. He told them that Arizaga had returned to work after being instructed to do so, that employees nevertheless remained and began gathering around his work station, and that Arizaga then joined the employee group and refused to return to work when instructed to do so.
Parker recalls Bustamante telling him that Arizaga had been told that he would have to clock out if he did not intend to return to work. Matters apparently escalated at that point, according to Parker’s version of what Bustamante told him, and employees then walked out. Bustamante purportedly told Parker that it was after the walkout that Arizaga began to accuse Bustamante of pushing or shoving him. Bustamante denied to Parker, Busse, and Peterson ever pushing Arizaga. Neither Parker, Busse, or Peterson, however, questioned Arizaga about the incident or bothered ascertain his side of story. Busse recalls Bustamante saying that the incident began when Arizaga called Bustamante a “dirty name or something,” as he walked by Bustamante on his way to his work station. Bustamante could not recall what purportedly was said by Arizaga to Bustamante. Bustamante allegedly told Busse that after some words were exchanged, Arizaga returned to work as instructed, but that employees then gathered around his (Bustamante’s) work, told Bustamante that if Arizaga was being sent home then they too would be leaving, and then went outside and gathered around the break area. (Tr. 598).
Parker then went out to meet with the employees and observed
officers
Busse testified that he fired Figueroa when the latter
said he was not returning to work, and that, when Figueroa declined to leave,
he (Busse) notified the police officers that Figueroa was no longer employed at
the facility and was refusing to leave.
The police officer then instructed Figueroa that he would have to leave
or he could be charged with trespassing.
Figueroa got up and left and left, followed, with some exceptions, by
the employees who were gathered around.
Parker and Peterson both admit that, unlike Bustamante, who was allowed
to give his version of what led up to the work stoppage, employees, including
Arizaga, were not afforded that opportunity.
(Tr. 494; 545–546). Busse further
admitted that after Figueroa was told he was fired, neither he nor any of the
other managers present told employees that they could still return to work.
(Tr. 616).
Figueroa claims that Parker then addressed the employees
gathered in the break area and instructed them to listen because he only wanted
to say this one time. Parker asked
employees if they were going to return to work.
Receiving no responses, Parker turned to Figueroa and asked the latter
if he was going back to work. Figueroa
replied that he was waiting for Union representative
Salgado similarly recalled Parker addressing employees,
telling them that he was only going to say this once, and that if employees did
not return to work, they would be fired.
He further recalled Parker telling Figueroa, in response to the latter’s
insistence that he was going to wait for his union representative,
I credit Figueroa and Salgado over Parker and Peterson. Parker, it should be noted, was never asked to admit or deny Figueroa’s claim of being told by Parker that he had no union representation. Thus, I find that Parker indeed told Figueroa, when the latter said he was waiting for his union representative to arrive, that he, Figueroa, had no union representation. Unlike Parker, Peterson, as indicated, implicitly denied the statements attributed to him by Salgado by claiming that he never spoke to any employees, including presumably Salgado, during the encounter that evening. Peterson’s overall testimony, including his denial of Salgado’s claim, was not very convincing. Peterson’s testimony on whether union representatives were allowed on Company property was, as noted, directly challenged by Parker who, when told about Parker’s claim, averred that Peterson’s testimony on this matter was “not correct.” I found Salgado’s testimony more reliable and trustworthy, and believe that Peterson did in fact speak to Salgado that evening by telling him he would be fired if he did not return to work, and, when told by Salgado that he and others were waiting for union representative Martinez to arrive, replied that the Union was not allowed to come onto the Respondent’s property.
As noted, after being discharged, Figueroa told Parker and
the other management representatives that he was nevertheless going to wait at
the facility for
Bustamante claims that after Busse and Parker arrived, all three, along with Petersen, headed towards where the employees were and, on arriving, observed Officers Burton and Olson present. Officer Burton approached Bustamante and told him Arizaga was accusing him of battery. Bustamante denied doing so. Officer Burton, he contends, then asked Arizaga if he wished to press charges against Bustamante, but Arizaga said he did not, and simply wanted Bustamante to refrain from doing so in the future. The policeman informed Bustamante that Arizaga was not pressing charges, and that Bustamante was not to push Arizaga. Bustamante replied, “Okay.” (Tr. 418).
Bustamante contends that soon after this discussion with officer
Arizaga testified as follows regarding his conversation
with Officer Burton. When the officers,
Arizaga identified himself as the one who had allegedly been battered. Arizaga told Officer Burton that the incident
occurred inside the facility and proceeded to explain what had occurred and how
Bustamante had bumped him in the chest.
He contends that Parker approached at one point and had a brief
conversation with
The police officers then asked Bustamante for his version
of the incident and, after hearing it, asked Arizaga if he wanted to press
charges against Bustamante. Arizaga
claims that Parker, who apparently was nearby, cautioned Arizaga to think about
what he was going to do. (Tr. 134).
Arizaga did not respond to Bustamante.
He contends that Officer Burton then asked if he intended to stay or to
join his co-workers who had walked off the job.
Arizaga replied that he was joining his co-workers. At that point, Arizaga went to the facility
to retrieve his personal belongings, placed them in his car which was in the
Company parking lot, and then returned to the Bar Tech parking lot where the
employees had gathered to decide what to do next. Union representative
Called as a witness by the General Counsel, Officer Burton
explained that he went to IHC to investigate a “battery” complaint. When he arrived, and after identifying Arizaga
as the alleged victim, he was told by Arizaga, through an employee interpreter,
that Bustamante had bumped him in the chest while he, Arizaga, was speaking
with another employee. According to
Officers
On the morning of June 28, the day following the Bustamante-Arizaga incident and walkout by employees, the first shift employees did not report for work but instead took part in the picketing engaged in by the second shift employees outside the Respondent’s facility. Parker testified that he spoke with Trone on June 28, regarding the walkout and was told by Trone that the employees were engaged in a protected concerted activity to protest what they perceived to be the hostile work environment created by Bustamante. That same morning, Peterson, accompanied by Busse, posted a help wanted sign outside the Respondent’s facility. (Tr. 489). According to Peterson, the Respondent also placed a help-wanted ad in a local newspaper at around the same time. (Tr. 504).
Peterson recalls speaking with
Busse gave similar testimony regarding the exchange he and
Peterson had with
I credit