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,
Pennant Foods Co., a Wholly-Owned Subsidiary of
CS Bakery Holdings, Inc., a Wholly-Owned Subsidiary of Chef Solutions Holdings,
LLC and International Union, United
Automobile, Aerospace & Agricultural Implement Workers of America, AFL–CIO. Cases
34–CA–11385, 34–CA–11417, 34–CA–11504, and 34–RC–1925
May 12, 2008
DECISION, ORDER, AND DIRECTION OF
THIRD ELECTION
By Chairman Schaumber and Member Liebman
On September 17, 2007, Administrative Law Judge Michael A. Marcionese issued the attached decision. The Respondent filed exceptions and a supporting brief,[1] the General Counsel filed an answering brief, and the Respondent filed a reply brief. The Charging Party filed exceptions and a supporting brief, and 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,[2] and conclusions and to adopt the recommended Order[3] as modified and set forth in full below.[4]
ORDER
The Respondent, Pennant Foods Company, a wholly-owned
subsidiary of CS Bakery Holdings, Inc., a wholly-owned subsidiary of Chef
Solutions Holdings, LLC,
1. Cease and desist from
(a) Coercively interrogating employees about activities on
behalf of, or support for, the International Union, United Automobile,
Aerospace & Agricultural Implement Workers of America, AFL–CIO (the
(b) Threatening employees with the loss of benefits or
plant closure if they select the
(c) Denying reinstatement to employees for supporting the
(d) Creating or discriminatorily applying job descriptions and a light-duty policy in order to prevent employees from returning to work from workers’ compensation leave because of their union membership and 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 Lee Mabry full reinstatement to his former job as a machine operator or to a light duty assignment consistent with any medical restrictions imposed by a physician, or, if his former job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make Lee Mabry whole for any loss of earnings and other benefits resulting from the discriminatory refusal to reinstate him, less any net interim earnings, plus interest in the manner set forth in the remedy section of the judge’s decision.
(c) Rescind the machine operator job description and the worker’s compensation light-duty policy that was utilized to deny Lee Mabry reinstatement in December 2005.
(d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful denial of reinstatement, and within 3 days thereafter notify Lee Mabry in writing that this has been done and that the refusal to reinstate him will not be used against him in any way.
(e) 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.
(f) Within 14 days after service by the Region, post at
its facility in
(g) Within 14 days after service by the Region, hold a meeting or meetings, scheduled to ensure the widest possible attendance, at which the attached notice is to be read to the employees by the current plant director, production manager, or corporate vice president for human resources, with translation available for Spanish-speaking employees, and with a Board agent present during the reading.
(h) Within 14 days from the date of this Order, supply the Union the full names and addresses of current unit employees at the North Haven facility, updated every 6 months, for a period of 2 years from the date the notice is posted, or until the National Labor Relations Board has issued an appropriate certification following a free and fair election, whichever comes first.
(i) Provide the Union with notice of, and equal time and facilities to respond to, any address made by the Respondent to employees on the question of union representation, for a period of 2 years from the date the notice is posted, or until the National Labor Relations Board has issued an appropriate certification following a free and fair election, whichever comes first.
(j) Upon reasonable advance notice from the Union, afford the Union and its representatives reasonable access to the Respondent’s bulletin boards and all places where notices to employees are customarily posted at the North Haven facility for a period of 2 years from the date the notice is posted, or until the National Labor Relations Board has issued an appropriate certification following a free and fair election, whichever comes first.
(k) 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 election in Case 34–RC–1925 shall be set aside and this case is remanded to the Regional Director for Region 34 to conduct a third election at a time and place to be determined by him.
DIRECTION OF THIRD ELECTION
A third election by secret ballot shall be held among the
employees in the unit found appropriate, whenever the Regional Director deems
appropriate. The Regional Director shall
direct and supervise the election, subject to the Board’s Rules and Regulations. Eligible to vote are those employed during
the payroll period ending immediately before the date of the Notice of Third
Election, including employees who did not work during the period because they
were ill, on vacation, or temporarily laid off. Also eligible are employees engaged in an economic
strike that began less than 12 months before the election date and who retained
their employee status during the eligibility period and their
replacements.
To ensure that all eligible voters have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses that may be used to communicate with them. Excelsior
Underwear, 156 NLRB 1236 (1966); NLRB
v. Wyman-Gordon Co., 394
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 coercively interrogate you about your activities on behalf of,
or support for, the International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, AFL–CIO (the
We
will not threaten you with the loss of benefits or plant closure if you
select the
We
will not deny you reinstatement for supporting the
We will not create or discriminatorily apply job descriptions and a light-duty policy in order to prevent you from returning to work from workers’ compensation leave because of your union membership and activities.
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 of the date of the Board’s Order, offer Lee Mabry full reinstatement to his former job as a machine operator or to a light-duty assignment consistent with any medical restrictions imposed by a physician, or, if his former job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
We will make Lee Mabry whole for any loss of earnings and other benefits resulting from our discriminatory refusal to reinstate him, less any net interim earnings, plus interest.
We will rescind the machine operator job description and the worker’s compensation light-duty policy that was utilized to deny Lee Mabry reinstatement in December 2005.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to our unlawful refusal to reinstate Lee Mabry, and we will, within 3 days thereafter, notify him in writing that this has been done and that the refusal to reinstate will not be used against him in any way.
We will, within 14 days after service by the Region, hold a meeting or meetings, scheduled to ensure the widest possible attendance, at which this notice to employees is to be read to you by our current plant director, production manager, or corporate vice president for human resources, with translation available for Spanish-speaking employees, and with a Board agent present during the reading.
We will, within 14 days from the date of the Board’s Order, supply the Union the full names and addresses of current unit employees at the North Haven facility, updated every 6 months, for a period of 2 years from the date the notice is posted, or until the National Labor Relations Board has issued an appropriate certification following a free and fair election, whichever comes first.
We will provide the Union notice of, and equal time and facilities to respond to, any address we make to you on the question of union representation, for a period of 2 years from the date the notice is posted, or until the National Labor Relations Board has issued an appropriate certification following a free and fair election, whichever comes first.
We will, upon reasonable advance notice from the Union, afford the Union and its representatives reasonable access to our bulletin boards and all places where notices to employees are customarily posted for a period of 2 years from the date the notice is posted, or until the National Labor Relations Board has issued an appropriate certification following a free and fair election, whichever comes first.
Pennant Foods Company
Jennifer
Dease, Esq. and Margaret Lareau, Esq., for the General Counsel.
Gary Glaser, Esq. and Paul Galligan, Esq. (Seyfarth Shaw, LLP), for the Respondent-Employer.
Thomas W. Meiklejohn, Esq. (Livingston, Adler, Pulda Meiklejohn & Kelly), for the Charging Party-Petitioner.
DECISION
Statement of the Case
Michael A.
Marcionese, Administrative
Law Judge. I heard this case in
By Order dated May 22, the consolidated
complaint was further consolidated with objections that had been filed by the
On May 17, the
On the entire record, including my
observation of the demeanor of the witnesses, and after considering the briefs
filed by the General Counsel, the
Findings of Fact
i. jurisdiction
The Respondent, a corporation, manufactures
frozen dough and other bakery products at its facility in
ii. alleged unfair labor
practices
A.
Background
1. The Respondent’s name
As noted above, the complaints in the
instant case alleged that the Respondent is “a Questor Company.” Counsel for
the General Counsel stated at the hearing that Questor was the only partner in
Chef Solutions LLC, the parent company of Pennant Foods’ parent, CS Bakery
Holdings, Inc.5 She cited a leaflet
distributed to employees during the January preelection campaign which
identified Questor as a major shareholder of the Company and referred to
support received from Questor in the Respondent’s efforts to remain
competitive. The Respondent, in its answers to the complaints, at the hearing,
and in its brief has objected to the General Counsel’s inclusion of Questor in
the definition of the Respondent. According to the Respondent’s counsel, no
evidence has been offered by the General Counsel or the Charging Party that
would justify naming Questor a respondent.
The General Counsel’s position in this
case differs from the position it took in the unfair labor practice proceeding
before another administrative law judge in November 2005. In that case, the
General Counsel stipulated that Questor was merely a shareholder of the
Respondent and amended the complaint to delete reference to Questor. Pennant Foods Co., 347 NLRB No. 41, ALJD
fn. 1 (2006). In the instant case, General Counsel has offered no evidence that
would link Questor, or any supervisor or agent of that entity, with the unfair
labor practices alleged to have been committed. More specifically, there is no
evidence in this record that would warrant a piercing of the corporate veil to
impose liability for any of the alleged unfair labor practices on any individual
shareholder or limited liability partner. See White Oak Coal Co., 318 NLRB 732 (1995). Cf. A. J. Mechanical, 345 NLRB 295 (2006), reversed in pertinent
part 481 F.3d 804 (D.C. Cir. 2007).
I find, based on the limited evidence in
the record, that “Questor,” at most, was a shareholder or owner of the Respondent’s
parent company at the time the unfair labor practices were allegedly committed.6 As such, it was not properly named a
Respondent because there is no evidence that Questor and the Respondent failed
to maintain separate identities and that adherence to the corporate structure
in this case would “sanction a fraud, promote injustice, or lead to evasion of
the Respondent’s legal obligations.” White
Oak Coal Co., supra. Nor is there
any evidence that would establish a single employer, alter ego, or joint
employer relationship between Questor and the Respondent. Accordingly, I have
amended the caption to delete Questor from the definition of the Respondent.
2. History preceding the rerun election
The Respondent manufactures frozen rolls
and other bakery goods at the
As noted above, the
At the hearing, I rejected the General
Counsel’s proffer of the informal settlement agreement, the formal settlement
stipulation, and the order and judgment enforcing the formal settlement on the
grounds that the settlement of unfair labor practice charges where the Respondent
did not admit it had violated the Act was not relevant to determining whether
the Respondent violated the Act as alleged in the instant complaints, or
whether the special remedies sought by the General Counsel in this case were
warranted, or as proof of objectionable conduct. I adhere to that ruling. See Sheet Metal Workers Local 28 (Astoria Mechanical
Corp.), 323 NLRB 204 (1997). However, I have taken administrative notice of
the documents for the purpose of establishing the procedural history leading up
to the instant proceeding. As I advised the parties when making my ruling at
the hearing, if the General Counsel or the Charging Party wished to rely on the
conduct alleged in the earlier cases to support the positions taken here, they
would have to offer proof of the conduct and not simply rely on the existence
of the settlement agreements.8
While the formal settlement agreement was
pending before the Board, the
The Respondent’s campaign to convince its
employees to vote against union representation at the January 20 rerun election
generated the current round of charges. The
B.
The 8(a)(1) Allegations
1. Case 34–CA–11504
The sole allegation in this complaint is
that the Respondent, through Fred Macey, its operations manager at the time,11 violated Section 8(a)(1) of the Act in
December 2005 or January 2006 by threatening employees with retaliation if they
talked about the Union and engaged in union activity, and prohibited employees
from talking about the Union and engaging in union activities. This allegation
is based upon an incident involving Macey and former employee Gustavo Caporal,
who was the General Counsel’s sole witness in support of this allegation.
Caporal was terminated by the Respondent on May 4 for allegedly making false
entries in company records regarding the temperature of frozen dough being
loaded onto trucks for shipment. Caporal, in his testimony, disputed the
Respondent’s claims against him, suggesting that he may have been set up to be
terminated. However, the allegations in this charge relating to his discharge
were dismissed by the Regional Office and not appealed by the
As to the specific allegation at issue,
Caporal testified that, a few weeks before the January 20 election, after he
and other employees began campaigning for the
Macey did not deny having a conversation
with Caporal before the election about his being on the production floor. Macey
testified that he spoke to Caporal in response to complaints he had received
from the mixer operator and a supervisor that Caporal was interfering with
production. According to Macey, he merely took Caporal aside and told him that
he works in the shipping department and should remain there, that there was no
reason for him to be talking to employees on the production floor. Macey
testified that he told Caporal that he could go to the cafeteria and talk to employees
on his breaks. Macey denied mentioning the
The General Counsel argues that Macey’s
statements to Caporal were an implied threat of retaliation for talking about
the
Based on the above, I have determined
that the General Counsel has failed to meet his burden of proof on this allegation.
Because this is the only unfair labor practice allegation in Case 34–CA–11504,
I shall recommend that the complaint in that case be dismissed in its entirety.
2. Allegations involving Supervisor Rodriguez
The consolidated complaint in Case
34–CA–11385 and 34–CA–11417 alleges, at paragraphs 7 and 8, that the Respondent,
through its admitted supervisor, Jennifer Rodriguez, violated Section 8(a)(1)
of the Act by interrogating employees and threatening them with loss of
employment and closure of the facility if they selected the Union to represent
them.14 Respondent has denied these
allegations. The General Counsel’s sole witness in support of these allegations
was former employee Ricardo Rodriguez, who testified to two encounters with Supervisor
Rodriguez in the weeks preceding the January election.15
Ricardo Rodriguez was employed by the Respondent
from October 31, 2005, until he voluntarily quit in April or May, a few months
after the election. He was a quality control inspector on the second shift.
Jennifer Rodriguez was his immediate supervisor. Ricardo Rodriguez testified
that Supervisor Rodriguez called him into her office on January 10 at about 4
or 5 p.m. No one else was present.16
According to Ricardo Rodriguez, after initially talking about work-related
issues, Supervisor Rodriguez asked him what he knew about the
Ricardo Rodriguez testified that
Supervisor Rodriguez also told him, in this conversation, that if the
Ricardo Rodriguez testified to one other
conversation with Jennifer Rodriguez that occurred about a week before the election.
This conversation, also in Spanish, took place in her office with no one else
present. Again, after initially discussing a work issue, she asked him how
things were going on the floor. When Ricardo Rodriguez asked her what she
meant, Jennifer Rodriguez replied, “[Y]ou know, the
Jennifer Rodriguez testified for the Respondent.
She has been employed by the Respondent for more than 10 years and had been the
supervisor of sanitation and quality control for about 3-1/2 years at the time
of the hearing. She testified that she “did not, at any time talk to Ricardo
Rodriguez about the
As between these two witnesses, I found Ricardo
Rodriguez to be the more credible witness. Jennifer Rodriguez’ rote denials
were not persuasive. In addition, her testimony on another matter, the
preparation and distribution of the disputed job descriptions, was deliberately
misleading. For example, at first she testified that Maria Giaimo gave her the
new job descriptions. Later, when the Respondent’s counsel pointed out that
Giaimo did not work there when the job descriptions were supposed to have been
created, she changed her testimony. At another point in her testimony, Jennifer
Rodriguez testified that she didn’t remember if Operations Manager Macey read
from his power point presentation line by line, yet she was certain he didn’t
deviate from it. I also noted her evasiveness when answering questions on
cross-examination. In total, it appeared that she formulated her answers to
advance whatever position the Respondent was taking on an issue. In contrast,
Ricardo Rodriguez appeared to be candid with his answers, attempting as best he
could to recall events and conversations. Although the Respondent attempted to
show that he was biased against the Respondent because he had complained about
Jennifer Rodriguez’ supervision in his resignation letter, I did not detect any
bias in his testimony. Moreover, contrary to the Respondent’s argument, Ricardo
Rodriguez did refer to the unfair labor practice allegation in his resignation
letter, when he complained that the Respondent had violated his rights in the
election by telling him to vote “no.” Although he did not name his supervisor
as guilty of this affront, it is clear from his testimony that, on two
occasions, she told him to vote “no.”
Having credited Ricardo Rodriguez, I
find, based on his testimony, that the Respondent violated Section 8(a)(1) when
his supervisor called him into her office on two occasions and interrogated him
about the
As intimated above, I have also found,
based on Ricardo Rodriguez’ credited testimony, that Respondent unlawfully
threatened employees with plant closure when Jennifer Rodriguez told him,
without explanation, that the Union could end up causing the Respondent to
close the facility.18
Although her statement did not directly threaten that the Respondent would close the plant if the
3. Alleged threat by Price
The consolidated complaint in Cases
34–CA–11385 and 34–CA–11417 alleges, at paragraph 9, that the Respondent,
through Plant Director Price, threatened employees with loss of employment if
they selected the Union as their representative. The evidence offered at the hearing
indicates that this threat is alleged to have occurred during an employee
communication meeting Price held with employees in early January, shortly after
the rerun election was announced. The main witness for the General Counsel in
support of this allegation is Gregory Borukhovich, one of the unfair labor
practice strikers found to have been unlawfully denied reinstatement in the
earlier unfair labor practice proceeding before Judge Biblowitz.
Borukhovich testified that he attended a
meeting in the lunchroom with about 20–30 other employees, in early January, at
which Price informed employees of a wage increase and improvements in benefits.19 Price also talked about the Respondent’s
accomplishments in the past year. During the question and answer portion of the
meeting, after Price mentioned a letter he sent to the employees about the
recent holidays, Borukhovich spoke up, saying, “[W]hat holiday, I had one day
off.” Price then mentioned the upcoming election and told the employees that he
wanted to work with them and that, if they wanted to work with him, to vote
“no.” At that point, Borukhovich asked, “[I]f I vote ‘yes’, will you fire me?”
According to Borukhovich, Price did not answer this question. Instead, he
became annoyed and told Borukhovich, “[T]his is my meeting. I am paying for
this meeting.” Borukhovich admits he also got angry but claimed he could not
recall what he said. He acknowledged that he and Price argued back and forth to
the point he stopped paying attention to what was said. The only thing he
remembered clearly was the above-quoted question he asked Price, which
initiated the argument, and the fact that Price did not answer the question. On
cross-examination, Borukhovich denied that Price said the election would be by
secret ballot. However, he acknowledged that Price did say at one point that
“no one will know how you voted.”
The General Counsel called two other
witnesses to “corroborate” Borukhovich’s testimony. Jack Toporovsky, the other
unfair labor practice striker who was found to have been unlawfully denied
reinstatement in the prior case, testified that he was at this meeting and recalled
there being an exchange between Borukhovich and Price, but he did not recall
what was said. In his pretrial affidavit, Toporovsky had stated that he did not
recall being present at any meeting at which Borukhovich spoke up about whether
he would be fired if he voted for the
Price testified for the Respondent
regarding this allegation. Price recalled holding an employee communication
meeting in January at which Borukhovich got up and started to make a statement
during the question and answer portion of the meeting. Price admitted cutting
him off by saying, “[T]his is my meeting. If you have a question, ask it, but
don’t make statements.” According to Price, Borukhovich started to make his
statement again and Price again cut him off. Finally, Borukhovich sat down and
the meeting continued. Despite being able to recall the interruption and his response,
Price surprisingly could not recall what Borukhovich said before he cut him
off. Despite this lack of memory, Price was able to deny that Borukhovich said,
“[I]f I vote yes, you fire me,” or words to that effect. The Respondent called
no other witnesses who were at this meeting. Jennifer Rodriguez, who was
identified by other witnesses as being at this meeting, was not asked any
questions about it.
There is very little dispute regarding
the facts of this allegation. All witnesses who testified recalled Borukhovich
speaking up at the meeting and Price cutting him off by saying, “[T]his is my
meeting,” or words to that effect. Although Price claimed he could not recall
what Borukhovich said, I find his lack of recall not credible. Borukhovich’s
testimony that he asked Price if he would be fired for voting yes is
corroborated by Harris, a long-term employee of the Respondent whom I found to
be very credible. There is no dispute that, whatever Borukhovich said, Price
did not respond to it directly. The issue remains, however, whether Price’s
silence, in the face of such a statement, amounts to ratification or adoption
of the statement and a threat of job loss for voting for the
The General Counsel and the Charging
Party argue that Price’s failure to expressly disavow the suggestion in Borukhovich’s
question that a vote in favor of the
4. Alleged threats during the Respondent’s
preelection
campaign meetings
There is no dispute that, as part of its
campaign to convince the employees to vote against the
The consolidated complaint in Cases
34–CA–11385 and 34–CA–11417 alleges that statements made by Glancey at his series
of meetings unlawfully conveyed to employees that their selection of the
a.
Macey’s alleged threat
Macey conducted the first series of
meetings, sometime during the second week of January. The General Counsel
relies on the testimony of three witnesses to establish the violation, i.e.,
Ricardo Rodriguez, Toporovsky, and mixer operator Dave Armstead, a 21-year employee
of the Respondent. All three claim that, despite whatever instructions he had,
Macey deviated from the power point presentation and spoke extemporaneously
during the meeting. Ricardo Rodriguez and Toporovsky attended the same meeting,
at approximately 4 or 5 p.m. on January 11. Both recalled that Supervisor
Jennifer Rodriguez was at their meeting. Toporovsky recalled the meeting lasting
about 40 to 45 minutes. Although Rodriguez testified that the meeting was long
and tiring, he did not give a length of time it lasted. Armstead, who works on
first shift, attended a different meeting. He recalled that the meeting he
attended lasted about an hour.
Ricardo Rodriguez testified that, during
the meeting he attended, Macey said, “[I]f you don’t want to lose your medical
benefits, you will vote ‘no’” and “[Y]our 401 (k) will be gone,” and “[I]f you
don’t want to lose your 401(k), you will vote ‘no’.” According to Rodriguez,
Macey did not explain why their benefits would be “gone.” Rodriguez conceded
that Macey said a lot of other things in the meeting that he could not
remember. According to Ricardo Rodriguez, the most significant thing he remembered
from the meeting was Macey’s use of the command, “you will vote no” after
almost every statement he made. On cross-examination, Rodriguez testified that
Macey described the Respondent’s current health insurance benefits as good and
asked the employees why they would want to lose that. Macey went on to say
that, with a Union, that might happen and the employees would have to take
whatever the
Toporovsky’s recollection of the meeting
differed slightly from that of Ricardo Rodriguez. He testified that the theme
of Macey’s meeting appeared to be to tell people to vote “no” by pointing out
the
Armstead testified that Macey told the
employees at his meeting that their Blue Cross/Blue Shield insurance would be
gone if the Union came in because the
Macey, when called as a witness by the
Respondent, specifically denied making the statements attributed to him by the
General Counsel’s witnesses.22 He
testified that he merely read the slides in the power point and made no
additional comments. Although some of the power point slides had words and
phrases, such as “vote no,” printed in bold type, Macey denied emphasizing
these statements when he read the slides. He also claimed, somewhat disingenuously,
that the purpose of his presentation was not to urge the employees to vote no,
despite the appearance of this admonition in the slides. According to Macey, he
began the meeting by telling the employees he was there to provide them with
information and that he would not be taking questions. He told the employees
that, if they had questions, they could ask them at another time. He did corroborate
Armstead’s testimony regarding Armstead’s interruption and his response and
recalled that Borukhovich had also interrupted another meeting by making the
same statement he made during Price’s employee communication meeting about a
week earlier. According to Macey, each of his meetings lasted 30 minutes.
The only witness the Respondent called to
“corroborate” Macey’s denial was Jennifer Rodriguez.23 Jennifer Rodriguez denied that Ricardo
Rodriguez and Toporovsky were at the meeting she attended. She specifically
denied that Macey made the alleged threats attributed to him by these witnesses
and denied further that he deviated from the scripted power point presentation.
However, she admitted that she could not recall whether he read the script
“line-by-line.” Jennifer Rodriguez also exhibited poor recall regarding other
details of the meeting, including who else was at the meeting she attended.
In addition to the testimony of Macey and
Jennifer Rodriguez, the Respondent proffered the scripted power point presentation
as part of its defense to this unfair labor practice allegation. As to be
expected, nothing on the face of the document amounts to an unfair labor
practice under current Board law. Instead, the power point slides contain
information about the election, urge employees to vote “no,” posit the loss of
30,000 jobs at GM as the reason the Union is seeking to represent the
Respondent’s employees, discusses the role of shop stewards (called “Union
pushers”) and the “control” they and the Union would exercise over employees
work and lives if the Union were successful, refers to unions’ history of
“embezzlement, theft . . ., etc.” and, at the end, asks the employees
if they are willing to “risk it.” None of the power point slides in evidence
mention the potential loss of medical or 401(k) benefits. The only reference to
these benefits is on the following slide, which appears toward the end of the
presentation:
How does a
·
Through
dues, fines and assessments.
·
By
attempting to control your health insurance premiums.
·
By
attempting to control your incentives, bonuses, etc. . . . .
·
By
attempting to control your 401k monies.
Thus, whether the Respondent committed
this alleged unfair labor practice turns initially on whether the testimony of
the General Counsel’s witnesses, that Macey did not limit himself to the
scripted presentation, is credible.
Having carefully considered the matter, I
am unable to credit Macey’s testimony that he merely read the script and did
not say anything beyond what was on the slides. I note that Jennifer Rodriguez,
whom I have already found not to be a credible witness, did not effectively
corroborate this testimony. Although she claimed that Macey did not deviate
from the script, she admitted not being able to recall if he read it
“line-by-line.” Moreover, if Macey had simply read what was on the slides, the
meeting could not have lasted the thirty minutes he claims, and certainly not
40 minutes to an hour, as the General Counsel’s witnesses recalled. In fact, it
takes about 5 minutes to read through the exhibit purporting to be the power
point presentation, if one reads it at a pace one would expect to be used in a
meeting of this nature. Even allowing for time for the interpreter to translate
what Macey was saying, the process could not have consumed 30 minutes, unless
Macey elaborated on the points raised in the presentation.24 Finally, I note the natural human
tendency to extemporize from a prepared script in situations where an
individual is speaking on a matter of significance and is trying to make a
point, or sell an idea.
Having found that Macey did not limit
himself to the script, at least at the two meetings attended by the General
Counsel’s witnesses, I must determine whether he made the statements attributed
to him by these witnesses and whether such statements amount to a threat of
loss of benefits in violation of the Act. Because I have discredited Macey’s
claim that he limited his statements at the meeting to what was in the script,
I find his denial of the alleged threat unpersuasive. I do not corroborate any
of Jennifer Rodriguez’ testimony about this meeting. As with her testimony
regarding the conversation with Ricardo Rodriguez and her testimony regarding
the purported job descriptions, I find that she was simply saying what was
expected of her and was not candid in her testimony.25 At the same time, the testimony of the
General Counsel’s witnesses was not free from doubt. I note, in particular, the
lack of context to the statements they recalled from the meeting. Although all
recalled the meeting lasting a considerable amount of time, they recalled very
little of what was said. In addition, on cross-examination, counsel for Respondent
was able to undermine some of their direct testimony by getting the witnesses
to acknowledge either that they were not paying attention, or that they had
confused several meetings, or that their memory was not clear. At the same
time, I am struck by the fact that all three recalled very similar statements
by Macey, which they adhered to during somewhat lengthy cross-examination.
After careful consideration, I have decided to credit the General Counsel’s witnesses and find that, at the two meetings conducted by Macey that they attended, he elaborated on the points raised in the power point by telling employees that, if they selected the Union, they could lose their current health and 401(k) benefits because the Union would want to have their own such benefits. This statement was most likely made in connection with the point made in the slide that unions make their money through such fringe benefit funds and to emphasize the theme of Macey’s meeting, i.e., that employees would “lose control” if they were represented by a union. Whether such statements violate the Act turns on whether the message conveyed to employees is that their wages and benefits are threatened, not because of the uncertainties of collective bargaining, but simply because the employees selected a union to be their bargaining representative. Federated Logistics & Operations, 340 NLRB 255 (2003), enfd. 400 F.3d 920 (D.C. 2005), and