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,
Iberia Road Markings Corp. and Alecc Ortiz.
Iberia Road Markings Corp. and Alecc Ortiz, Petitioner and Local 917, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
February 27, 2009
DECISION, ORDER, AND DIRECTION
By Chairman Liebman and Member Schaumber
On May 18, 2007, Administrative Law Judge Mindy E. Landow issued the attached decision. The Respondent filed exceptions and a supporting brief. Intervenor International Union of Painters and Allied Trades, Local 8A–28A, AFL–CIO filed exceptions, and the Respondent filed an answering brief.
The National Labor Relations Board1 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
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that Respondent Iberia Road
Markings Corp.,
Direction
It is directed that the Regional Director for Region 29 shall, within 14 days from the date of this Decision, Order, and Direction, open and count the ballots of Alecc Ortiz, Miguel Freire, Danny Travers, and Javier Figueira. The Regional Director shall then prepare and serve on the parties a revised tally of ballots and issue the appropriate certification.
Dated,
Wilma B.
Liebman, Chairman
Peter
C. Schaumber, Member
(seal) National
Labor Relations Board
Emily
DeSa, Esq.,for
the General Counsel.
Joshua
D. Rose and Fred E. Klein, Esqs. (Klein Zelman
Rothermel
LLP), of
Tyler
D. Malin and Roger H. Madon, Esqs. (Madon Malin, P.C.), of
DECISION
Statement of the Case
Mindy
Pursuant to a
decision and direction of election (the Decision) issued on October 19, an
election by secret ballot was conducted on November 13, among the employees in
the following unit:
All full-time and
regular part-time drivers who are engaged in driving kettle trucks transporting
principally the road marking material to the application site, breaking block
(can or bag), assisting thin loading material, feeding the kettle, loading the
truck, in layout or traffic control and any other duties required as part of
the crew operations, secretary, crew chiefs and laborers (stripes) employed by
the Employer out of its 104 Lombardy Street, Brooklyn New York facility and excluding
guards and supervisors as defined in the Act.2
There were
determinative challenges to the ballots of six voters.3
Thereafter, on
December 14, based upon a charge and first amended charge filed by Ortiz on
October 3 and November 30 respectively, a complaint and notice of hearing
issued alleging that Respondent violated Section 8(a)(1)(3) and (4) of the Act
by discharging Ortiz because he filed a decertification petition with the
Board. Respondent filed an answer denying the material allegations of the
complaint. On December 14, the Regional Director for Region 29 also issued a
report on challenges, order consolidating cases, and notice of hearing (the
report) which sustained the challenges to the ballots of two voters on the
basis that they were corporate officers and owners of the Employer, overruled
the challenge to the ballot of one employee and directed that a hearing be
conducted to resolve the challenges to the votes of Ortiz, Miguel Freire, and
Danny Travers. The hearing on challenges was consolidated for hearing with the
unfair labor practice case. As regards the challenged ballots, the issues
defined for hearing by the report are (1) whether Ortiz was discharged for
cause on October 2, or in violation of the Act; (2) whether Miguel Freire, as
an employee-relative of the Employer’s owner and President is “aligned with management”
or has a sufficient community of interest with other bargaining unit members to
warrant his inclusion in the unit; and (3) whether Danny Travers was laid off
on December 7, 2005, or voluntarily quit prior to the completion of the last
job for which he was employed. I heard these consolidated cases on February 5
and 6, 2007, in
On the entire
record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel, the Respondent/Employer
and Local 8-A,5
I make the following:
Findings of Fact
i. jurisdiction
The Respondent, a
domestic corporation with its principal office and place of business located at
ii. alleged unfair
labor practices
Respondent’s
Business Operations
Respondent is a
small privately-owned corporation whose primary business is painting lines on
public streets. Jose Freire (Freire), who has been the President of the company
for the past 25 years,6 is one of five owners, each of whom owns 20 percent of the
stock. Other owners include Freire’s brother and cousin. Jose Manuel Suarez
(Suarez), who testified herein, is the shop foreman, vice president of the corporation,
and a co-owner as well.7 He is oftentimes referred to as
“Manny.”
Respondent’s
facility is located in the Greenpoint section of Brooklyn, geographically equidistant
between the Queensboro (also known as the
Respondent’s
business operates primarily on a seasonal basis, typically from March or April
through November or December. At the end of each season, most of the employees
are laid off. Two or three of the most senior employees are retained to maintain
the equipment and work in the shop. Employees are recalled from lay off, as
business allows, in the order of their seniority. During the period of their
lay off, employees file for unemployment benefits and many seek other
employment.
Local 917 has been
the collective-bargaining representative of Respondent’s employees for a number
of years. The most recent collective-bargaining agreement was due to expire on
September 30.9 Article 14 of the
agreement (Discharge) provides as follows:
No employees shall
be discharged except for good and sufficient cause. . . Examples of such good and sufficient cause
include, but are not limited to: proven theft of money, goods or merchandise,
proven drunkenness or proof of being under the influence of alcohol or drugs
during working hours, calling an unauthorized strike or walkout, assault on
Employer or its representatives, failure to report an accident of which the
employee would normally be aware, proven recklessness resulting in a serious
accident while on duty, the carrying of unauthorized passengers in the cab or
truck while on duty, engaging in unauthorized transportation of merchandise or
goods for personal gain during working hours and direct refusal to obey orders
of the Employer which are not in violation of this agreement.
The
Discharge of Alecc Ortiz
Ortiz was employed
by the Respondent for approximately 13 years, primarily as a laborer and
occasionally as a foreman. His principal duties were to pour thermoplastic into
the kettle drum to be melted, sweep debris out of the way, and flag and direct
traffic.
Ortiz’
Prior Discipline
In November 2003,
Ortiz was involved in an incident which led to his discharge, which was then
converted into a 1-week suspension. On this occasion, Ortiz had removed some
propane tanks from their storage area and was preparing to load the kettle
truck assigned to his crew. Shop foreman Suarez instructed Ortiz to give the
tanks to another crew. Ortiz, who had previously injured himself lifting and
carrying such tanks, became upset at this direction and began to argue with
Suarez. Suarez left the area to get a cup of coffee, but Ortiz remained upset.
His comments provoked coworker Jose Raymond Dominguez (Dominguez), the crew
chief on the truck which was designated to receive the propane, and Dominquez
threw a punch at Ortiz, missing him. Suarez reported the situation to Freire,
who came downstairs to the shop floor and fired both Ortiz and Dominguez.
According to the accounts offered by both Ortiz and Dominquez and as set forth
in a contemporaneous letter prepared by Freire and sent to Local 917 (based
upon the events as reported to him at the time by Suarez),10 Dominguez made
one unsuccessful attempt to hit Ortiz, which he did not return.11 Nevertheless, Ortiz was viewed as the provocateur
and instigator of the incident. After both men were fired, the
As per our
telephone conversation today’s date I agree with you that Ray Dominguez can
come back to work tomorrow November 5, 2003. However, since Alecc Ortiz was the
instigator on this fight he will be suspended without pay for one working week.
Therefore, this letter has to be signed by you and Mr. Ortiz that if he starts
another fight or he gives any of his superiors problems he will be terminated.
Freire testified
that his understanding of this letter was that Ortiz would be reinstated after
his suspension, “with the condition that he would never be in problems again .
. .” Ortiz similarly testified that he realized that if he engaged in any more
misconduct, he would be terminated.
Ortiz received no
other discipline during his employment with Respondent.
The
Decertification Petition
In early September,
Union Representative Isaac met with employees and informed them that they might
have to accept a reduction in pay and/or benefits. Employees were unhappy about
these proposals and decided to try to decertify Local 917. Approximately six
employees visited the Board’s Brooklyn Regional Office and met with the
information officer, who advised them to return in October, after the collective-bargaining
agreement expired. The information officer further advised employees that it
was not necessary for them all to return, that one or two individuals would
suffice.
Ortiz subsequently
prepared a petition stating, in essence, that employees no longer wished to be
represented by Local 917, and all the current employees signed it. He returned
to the regional office on October 2.
Events of
October 2
On October 2, Ortiz
was working the night shift, which runs from 3 a.m. to 2 p.m.12 The
other members of his crew were Dominguez, who was the foreman, pickup truck
driver Manuel Vazquez (Vazquez), and kettle truck driver Julio Rosas (Rosas).13 The
men were working on a project, extending over several days, painting lines
along Fifth Avenue (in Manhattan) in cross streets ranging from the upper 60’s
to the lower 20’s. On that day, the crew left the shop, stopped off for
breakfast, and then drove to the work site via the
Ortiz had the
document containing employee signatures with him, and at the beginning of the
work day he informed Dominguez that, if he had a chance, he would go to the
Labor Board to drop it off. Vazquez testified that at some point Ortiz showed
him an envelope and stated that he wanted to drop it off. He could not specifically
remember when that occurred, but stated that it was “maybe during the traveling
from—from where we had lunch, after that.” None of the employees who testified
herein provided testimony regarding further discussion of the petition or
Ortiz’ apparent plan to bring it to the Board that day.
Crews working the
night shift frequently complete their work for the day prior to stopping for
their lunchbreak, and this is what occurred on October 2. The crew worked
straight through and stopped for the day at approximately noon. They then took
their meal break from noon to 1 p.m. The testimony as to where the crew ate on
that day is not consistent, but the record establishes that the site, a diner
away and further downtown from the work site, was selected by Foreman
Dominguez, at a location where parking was easier. After the lunch hour was
completed, the men got into the trucks and proceeded into Brooklyn via the
Once the men
crossed the
Ortiz is
Discharged
At about 2:20,
Freire was in his office having lunch when Dominquez entered. The two men
exchanged pleasantries. At approximately 4 p.m. Freire received a facsimile
copy of the decertification petition filed earlier that day, signed by Ortiz.
Freire testified that he failed to understand the significance of the document
at the time. In addition to a copy of the petition itself, the Regional Office
sent a transmittal slip, containing the following information:
Attached is an
advance copy of a representation petition filed today with the National Labor Relations
Board. This petition constitutes a request to this Agency to conduct a union
representation election among the unit of employees described in paragraph 5 of
the petition. This advance copy is being provided for your information. More
detailed information is being forwarded to you today.
PLEASE NOTE THAT A
NOTICE OF HEARING, COPY ATTACHED IS ALSO BEING ISSUED TODAY FOR A HEARING TO BE
CONDUCTED ON THE DATE SET FORTH IN THE NOTICE. THE HEARING WILL BE CONDUCTED ON
THE DATE SPECIFIED UNLESS A POSTPONEMENT THEREOF IS REQUESTED PURSUANT TO THE
ATTACHED INSTRUCTIONS. THE HEARING WILL BE CONDUCTED ON CONSECUTIVE DAYS UNTIL
CONCLUDED.
According to
Freire, he then called Dominquez, and started yelling at him over the phone,
calling him a “son of a bitch” and asking him, “why do you take my trucks and
time to the Labor Board on Flatbush Avenue and J Street, when you guys were
supposed to take the 59th Street Bridge coming back to minimize the problems of
having an accident.”18
According to Freire, Dominguez replied that he had told Ortiz “not to do
it” because he was already getting into problems. Responding to specific
questions by Respondent’s counsel, Freire stated that Dominquez failed to
mention anything about eating lunch downtown or police activity at the
Freire next
attempted to contact Ortiz, was unable to reach him, and left two messages on
his voice mail. During the period of time when Freire was leaving these
messages, Ortiz was at home, taking a shower. His wife informed him that his
phone had been ringing. Ortiz saw that Dominquez had called, and called him
back. Dominquez told Ortiz that Freire was “furious” and had “found out” what
they had done that day. As Ortiz testified, he then called Freire who told him
that he knew what he did that day. Ortiz replied that he had just dropped off a
piece of paper. Freire told Ortiz he was fired. After Ortiz hung up he saw he
had two messages. In these messages Freire stated that he knew Ortiz had gone
to the Labor Board and that he was fired.
Freire was
questioned pursuant to Rule 611(c) by counsel for the General Counsel, and
admitted that in one of the messages he left for Ortiz he identified himself,
told Ortiz that it was very, very important that he call as soon as possible,
stated that he knew Ortiz had gone to the Labor Board that day, and further
told Ortiz that “whatever he did that day at the Labor Board was going to get
[him] fired.” Freire subsequently left another message for Ortiz telling him
not to bother to come in. Freire was also questioned regarding these phone
messages by counsel for Respondent. According to Freire, “[o]n the message I
told him that what they were doing on
Respondent
Meets with the Other Crew Members
On the following morning,
Dominguez, Rosas, and Vazquez were summoned to a meeting with Freire and shop
foreman Suarez. Freire asked the employees why they had gone out of their way
with the trucks on company time, with company money. According to both Freire
and Suarez, these employees were told that if they did anything like this
again, they would be fired. According to the employees present, Freire
expressed anger that they had gone out of their way to do personal business
when they were supposed to be working in
iii. analysis and
conclusions
The
Unlawful Discharge of Alecc Ortiz
The complaint
alleges that Respondent violated the Act by discharging Ortiz because he sought
the assistance of the Board and filed a decertification petition, a contention
which the Respondent denies. Respondent argues, in essence, that Ortiz was
fired for on the job misconduct, while subject to what Respondent characterizes
as a “last chance” agreement, by appropriating Respondent’s employees, time,
and trucks to run a personal errand, in violation of company policy. Respondent
argues that the employees had no apparent valid reason for proceeding back to
the shop by taking a downtown bridge and that the workers were obviously “in
cahoots” with Ortiz to go to the Board on the way back to the shop. Respondent
further asserts that the reason Ortiz coworkers were not similarly discharged
is twofold: unlike Ortiz, they were not subject to a last chance agreement and,
moreover, Respondent determined that due to business concerns it could not
afford to lose such a significant component of its workforce. Thus, Respondent
argues, these employees were warned and threatened with discharge should they engage
in similar misconduct in the future.
Section 8(a)(3)
provides, in pertinent part, that it is “an unfair labor practice for an
employer to discriminate in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage membership in any labor organization.”
Section 8(a)(4) of the Act provides that it is an unfair labor practice for an
employer “to discharge or otherwise discriminate against an employee because he
has filed charges or given testimony under this Act.” To establish a violation
of either Section 8(a)(3) or (4), the Board utilizes the analytical framework
set forth in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989
(1982). See NLRB v. Transportation
Mgmt. Corp., 462 U.S.
393, 395 (1983); see also American Gardens
Mgmt.Co., 338 NLRB 644, 645 (2002) ( Wright-Line
analysis applies to claims of discriminatory discharge under both Section
8(a)(3) and 8(a)(4)).
To meet its burden
under Wright Line, the General Counsel must first establish, by a preponderance
of the evidence, that the employee engaged in protected concerted activity, the
employer was aware of that activity, and that such activity was a substantial
or motivating reason for the employer’s action. Naomi
Knitting Plant, 328 NLRB 1279, 1281 (1999) (citations omitted).
Proof of an employer’s motive can be based upon direct evidence or can be inferred
from circumstantial evidence, based on the record as a whole. Robert
Orr/Sysco Food Services, 343 NLRB 1183 (2004), enfd. mem. 179 LRRM
(BNA) 2954 (6th Cir. 2006); Embassy
Vacation Resorts, 340 NLRB 846, 848 (2003); Ronin Shipbuilding, 330 NLRB 464
(2000). The Board has long held that, where adverse action occurs
shortly after an employee has engaged in protected activity, an inference of
unlawful motive is raised. McClendon
Electrical Services, 340 NLRB 613 fn. 6 (2003), citing La Gloria Oil, 337 NLRB 1120
(2002), enfd. mem. 71 Fed Appx.
441 (5th Cir. 2003) (Table). Other factors which may similarly
support such an inference include inconsistencies between the proffered reason
for the discipline and other actions of the employer, disparate treatment of
certain employees compared with other employees with similar work records or
offenses, and deviation from past practice. Embassy Vacation Resorts,
supra at 848.
Once the General
Counsel has made out the elements of a prima facie case, the burden of
persuasion then shifts to the employer to “demonstrate that the same action
would have taken place even in the absence of the protected conduct.” Septix Waste,
Inc., 346 NLRB 494, 496 (2006) (quoting Donaldson
Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004); Williamette
Industries, 341 NLRB 560, 563 (2004); Wright Line,
supra. To meet its Wright Line burden, however, “[a]n employer cannot
simply present a legitimate reason for its action but must persuade by a
preponderance of the evidence that the same action would have taken place even
in the absence of the protected activity.” W.F. Bolin
Co., 311 NLRB 1118, 1119 (1993), petition for review denied 70 F.3d 863
(6th Cir. 1995), enfd. mem. 99 F.3d 1139
(6th Cir. 1996). See also Manno Electric,
Inc., 321 NLRB 278, 280 fn. 12 (1996).
In the instant
case, I find that the General Counsel has met its initial burden under Wright
Line of establishing that Ortiz discharge was motivated, at least in part,
by his protected conduct.
The Board’s
approach to Section 8(a)(4) of the Act “has been a liberal one in order to
fully effectuate the section’s remedial purpose.” General
Services, 229 NLRB 940, 941 (1977), relying on NLRB v.
Scrivener, 405 U.S. 117, 124 (1972). Section 8(a)(4), an
essential aspect of the statutory scheme, is designed to “safeguard the integrity
of the Board’s processes.” Filmation
Associates, 227 NLRB 1721 (1977) (it provides a
“fundamental guarantee” to those invoking the procedures of the Act; and the
duty to preserve Board’s process from abuse is a function of the Board and may
not be delegated to the parties or an arbitrator).
Mindful of these
principles and practical concerns, the Board and courts have found that Section
8(a)(4) is not limited to protecting an employee who has filed charges or given
testimony. In Precision
Fittings, Inc., 141 NLRB 1034, 1035 fn. 3 (1963), the Board
specifically held that the protections of that section of the Act would extend
to employees who file decertification petitions. In that case, the Board
additionally affirmed the trial examiner’s conclusion that the discharge in
question violated Section 8(a)(3) of the Act as it, in pertinent part, encouraged
membership in the incumbent union. See also Aristocrat
Inns of America, 146 NLRB 1599 (1964) (discharge of employee
for filing decertification petition held to violate both Section 8(a)(3) and
8(a)(4) of the Act).
Thus, by filing the
petition seeking to decertify Local 917, Ortiz was engaged in conduct which is
protected by the Act. Moreover, the record establishes that when Respondent received
a copy of this petition, bearing Ortiz signature, it then had knowledge of this
protected conduct. This was subsequently reinforced during Freire’s telephone
conversation with Dominquez, where he asserted telling Ortiz “not to do it.”19 In this regard,
I do not credit Freire’s testimony that he failed to understand the
significance of the decertification petition at the time. The petition was sent
to Freire together with an attachment explaining the nature of the document and
advising that procedures before the Board had been initiated, which included
the possibility of a formal hearing. As noted above, Respondent’s counsel
elicited testimony from Freire regarding his prior experiences with unions and
I conclude based upon this testimony, together with his long tenure in the
industry, that Freire is not naďve in matters involving collective bargaining.
I further find that
the record establishes animus toward Ortiz protected conduct. As noted above,
Respondent has had a long-standing relationship with Local 917. I credit and
give probative weight to Ortiz testimony that Local 917 was amenable to
concessions favorable to Respondent,20
and find that these anticipated
concessions together with a relatively settled collective-bargaining
relationship would have caused Freire to have concern regarding any possible
decertification effort. In its brief, Respondent argues that Respondent would
have been unaware of any potential intervening union at the time the petition
was filed and, in this record, there is no evidence regarding when Local 8–A
sought to organize employees or moved to intervene in this matter. Nevertheless,
as noted above, I have found that Freire is knowledgeable about union-related
matters and conclude that he would have been aware of the possibilities
inherent in a decertification process.
Moreover, the
General Counsel has set forth direct proof of Respondent’s animus toward Ortiz
protected conduct by adducing Freire’s admission that he told Ortiz that
whatever he did that day at the Labor Board was going to get him fired. As
noted above, this statement was made almost immediately after Freire learned
that the petition had been filed, and accordingly constitutes strong evidence
of Freire’s motivation. McClendon Electrical Services, supra.
Thus, I conclude
that the General Counsel has established the elements of a prima facie case
that Ortiz was discharged for his protected conduct. Accordingly, the burden
now shifts to the Respondent to establish, by a preponderance of the evidence,
that it would have discharged Ortiz notwithstanding any protected conduct in
which he may have engaged.
As noted above,
Respondent argues that Ortiz was fired after having previously been suspended
and while subject to a last chance agreement, because he admittedly engaged in
further misconduct by appropriating Respondent’s employees, time, and trucks to
run a personal errand.
As Respondent
notes, the Board has long recognized the legitimacy of an employer enforcing
rules against the misuse of company vehicles. In Stilley
Plywood Co., 94 NLRB 932, 980 (1951), cited by Respondent,
the Board found that the employer lawfully discharged an employee who used a
company vehicle to drive to a union meeting. Similarly in Hertz Corp., 195 NLRB 96
fn. 2 (1972) and Pepsi Cola, 170 NLRB 1252, 1266 (1968), also
cited by Respondent, the Board sustained the discharges of employees who were
fired for using company vehicles to attend to personal matters during work
hours in violation of company policy. I note however, that all of these cases
were decided prior to Wright Line. For this, and other unrelated evidentiary
reasons, I find such authority to be of limited value in assessing the strength
of Respondent’s rebuttal to the elements of General Counsel’s prima facie case.
Nevertheless, I
find that Respondent’s stated concern with employee use of work time for
personal errands, coupled with the alleged unauthorized use of its vehicles,
presents a facially legitimate basis for its determination to discharge an
employee. However, it is Respondent’s burden not merely to advance a cognizable
reason, but rather to persuade, by a preponderance of the evidence, that this
was in fact the real reason for the discharge under consideration. Here,
Respondent has failed to meet that burden.
The most obvious
evidentiary hurdle for Respondent to meet involves Freire’s admission that in
the message he left for Ortiz he specifically stated that what Ortiz had done
at the Labor Board was going to get him fired. Under all the circumstances
herein, including the “stunningly obvious” timing,21 this
constitutes powerful evidence that the real reason Ortiz was fired was because
of his protected conduct, and not because of a misappropriation of employer
resources. Freire summarily terminated Ortiz without questioning him and I
further note that Freire admitted that when finally speaking with Ortiz he was
so angry that he could not recall whether Ortiz attempted to offer any excuse
for his conduct and further stated that he did not care what Ortiz would have
had to say, in any event. I infer that this demonstrable, heightened level of
animosity stemmed from the fact that Ortiz had filed the petition.
Freire’s account of
his conversation with Dominguez, and specifically his testimony that, he
demanded to know, “[w]hy do you take my trucks, my people and my time to the
Labor Board on Flatbush Avenue and J Street when you guys were supposed to take
the 59th Street Bridge to minimize the problems of having an accident” (which
Freire characterized as his “exact words”) simply did not have the ring of
truth. Rather, the evidence suggests that Freire’s discussion with Dominguez
related specifically to his displeasure regarding Ortiz filing of the petition.
As Freire acknowledged, Dominguez responded that he had told Ortiz “not to do
it.” It is obvious from the context that this comment relates specifically to
the filing of the decertification petition (which is the singular thing Ortiz
did that the others did not), and Dominguez’s attempt to deflect the
responsibility for this undertaking onto Ortiz. Freire offered no other
specific testimony regarding anything else Dominguez may have reported to him
at this time (except for some vague reference to Ortiz “problems”), or anything
else the two of them may have discussed. In this regard, I note that although
Dominguez was called as a witness by Respondent, he was not questioned
regarding his conversation with Freire. Under these circumstances, where the
content of this discussion is cited by Respondent in support of its contentions
regarding its motive for firing Ortiz, and where Dominguez, as a current and
long-term employee, has a pecuniary interest in testifying favorably for his
employer,22 I
draw an adverse inference from Respondent’s unexplained failure to adduce
corroborative testimony from Dominguez on this issue. See International
Automated Machines, 285 NLRB 1122, 1123 (1987). I infer,
therefore, that had Dominguez been asked about this discussion and had testified
truthfully, such testimony would have been adverse to Respondent’s position
herein, and conclude that Freire and Dominguez specifically discussed the
filing of the petition during their conversation, and further, that Freire made
his displeasure about this known to Dominguez.
When questioned by
Respondent’s counsel about what he said to Ortiz, Freire testified in essence
that he questioned what they were doing on
Respondent argues
that the provisions of the collective-bargaining agreement establish that the
unauthorized use of company vehicles for personal business is a dischargeable offense,
and further cites to Freire’s testimony that he is unaware of any other
circumstances of such unofficial use. While it is not entirely clear to me that
the express terms of the collective- bargaining agreement fully support this
contention, I have acknowledged that Respondent has the prerogative to insist
that its employees use its time and equipment for job-related assignments and,
as the Board has often held, it is not within the purview of the trier of fact
to substitute its business judgment for that of the employer. See Super Tire
Stores, 236 NLRB 877 fn. 1 (1978). Nevertheless, the unrebutted
record evidence establishes that the drivers used the trucks for personal matters:
stopping for breakfast en route to work locations, driving to lunch during
their work shift, and stopping for a drink on the way back to the shop. Moreover,
there is no evidence that such activities were out of the ordinary. Further,
there is no evidence that these stops and detours were subject to company
scrutiny, or that employees were ever told that they could not use the trucks
for such a purpose. Moreover, Dominguez testified, without contradiction, that
he was never questioned about his selection of a route; that on other occasions
had used downtown bridges to return to the facility and that there was never
one particular route that the drivers were supposed to follow.24
Additionally, there is
the fact that only Ortiz, the signatory to the petition, was fired while the
others were, at most, given a verbal warning. Respondent argues that this
discrepancy in the level of discipline meted out stems from the fact that only
Ortiz was subject to a “last chance” agreement and further that, due to business
concerns, it could not afford to discharge an entire crew of employees. In this
regard, Respondent places significant reliance upon the fact that employees
were severely reprimanded for their conduct on the following day and threatened
with discharge if they ever appropriated Respondent’s time and trucks for
personal errands again.25
As an initial
matter, I do not credit the testimony, offered by Freire and Suarez, that
employees were threatened with discharge during this meeting. As noted above,
Suarez offered an exaggerated account of Ortiz involvement and misconduct in
the 2003 incident which led to his suspension, one which did not comport with
the contemporaneous account he had provided to Freire. I further fail to credit
Suarez’s improbable assertion that he did not know the nature of the “personal
business” that employees had engaged in and for which they were being
reprimanded. I find, therefore that Suarez, a co-owner of the company and long
term business associate of Freire’s, has a propensity to offer false testimony
if he believes it will support Respondent’s position herein. Moreover, not one
of the three employees who testified regarding this meeting reported a threat
of discharge. I find that this is precisely the sort of warning that employees
would find of significance and would tend to recall. Again, I find such a lack
of corroboration to be significant. Based upon the foregoing, I find that Respondent’s
assertion, as stated in its brief, that the three employees were “vehemently
admonished” and “explicitly warned” that they would be fired if they engaged in
similar misconduct in the future is not supported by the evidence.
Thus, I find that
the other employees who, like Ortiz, took Respondent’s time and trucks on a
detour allegedly for the purpose of running a personal errand were given scant
discipline. Unlike Ortiz they were not discharged, they were not suspended,
they were not issued a “last-chance” letter, no warning was placed in their
file, and they were not threatened with discharge. This lack of meaningful
employee discipline stands in sharp contrast to Ortiz termination. The
disparate severity of his punishment raises a strong inference of pretext.
Respondent’s
counters this with reliance on Ortiz so-called “last chance” letter. I find,
however, that Respondent has failed to sustain its burden of establishing that
this would have precipitated Ortiz discharge had he not engaged in protected conduct,
but simply had taken a longer route back to the shop and stopped for a drink
with his coworkers in downtown Brooklyn, as did they. Nor does it, in my mind,
sufficiently explain the variance in the discipline meted out to employees.
In reaching this
conclusion, I note that Ortiz admitted that he understood that by agreeing to
the terms of the letter, he was acknowledging that he would be discharged if he
engaged in subsequent misconduct.26 However, this letter had been issued 3
years previously, without any intervening instances of wrongdoing. There are
other factors which militate against a determination that this letter would
have served as the basis for Ortiz discharge absent his protected conduct. In
particular, I note that Freire testified that he rarely discharged employees,
and Respondent has presented no evidence regarding any other instances of
employee discipline (other than the earlier incident involving Ortiz and
Dominguez).27 Further supporting this determination is the relatively light
punishment meted out to the others coupled with Respondent’s general lack of
supervision of employees regarding routes taken or stops made during the work
day.
Thus, while
Respondent has presented what appears on its face to be a legitimate basis for
its determination to discharge Ortiz, there is strong, direct, and unrebutted
evidence of unlawful motivation. This is coupled with a significant lack of corroboration
with regard to two important aspects of Respondent’s proffered defense, in
particular regarding what Freire discussed with Dominguez in their initial
conversation after the petition was filed and with respect to the manner of
discipline issued to the other employees. Given these considerations, and the
logical inferences to be drawn from the other facts and circumstances of this
case, as discussed above, I conclude that Respondent has failed to sustain its
burden of establishing that it would have discharged Ortiz regardless of his
protected conduct. Accordingly, I find that Respondent has violated Section
8(a)(1) (3) and (4) as alleged in the complaint. Accordingly, I recommend that
the challenge to Ortiz ballot be overruled. See Regency
Service Carts, 325 NLRB 617, 627 (1998).
iv. the other
challenged ballots
As noted above,
Local 8A and the Petitioner challenged the ballot Miguel Freire (Miguel) and
Petitioner challenged the ballot of Danny Travers (Travers).28 Travers’ ballot was challenged on the
basis that he voluntarily quit his employment in December 2005 to accept
another job. The stated basis for the challenge to Miguel’s ballot was that, as
the son of the President and co-owner of the Employer, he is aligned with management.29
At
the hearing Local 8–A raised the following additional issues: (1) that the
Employer is not in the construction industry and therefore the Regional Director
applied the incorrect voter eligibility standard and (2) that a consideration
of whether the challenge to Travers’ ballot should be sustained properly involves
an inquiry into whether Travers abandoned interest in continued employment by
obtaining a job elsewhere while on layoff and whether he manifested an intent
not to return to work for the Employer. In its posthearing brief, Local 8–A
raises additional arguments regarding the challenge to Miguel’s ballot alleging
that the challenge should be sustained because (1) between the time that he was
last employed and the date of the election, Miguel had started his own sign
hanging business, in competition with the Employer and (2) Miguel did not work
at any time during the 12 month period immediately preceding the voter
eligibility date, and is therefore ineligible to vote under the Daniel
Construction formula applied by the Regional Director.
The
2005–2006 Lay Off and Recall
As noted above, the
Employer’s employees are laid off during the winter season. In 2005, this took
place as of December 7, and was announced by the posting of a notice to employees
listing both those few employees who would remain employed and those being laid
off, in order of seniority. This notice was prepared by Office Manager Maria
Lago. Among those workers laid off on this occasion were Miguel and Travers. At
the time, Miguel had the least seniority of all workers.30
That following spring, Freire determined that, due to a downturn in business,
he required fewer employees, and recalled only 8 of 17 employees listed on the
layoff list. As with layoffs, recalls are done on the basis of seniority and
neither Travers nor Miguel were recalled that spring, and were not recalled at
any time prior to the election. At that time, based upon his position on the
seniority list, Travers was the next employee subject to recall.
Local
8-A’s Challenge to the Voter Eligibility Formula
At the hearing,
Local 8–A sought to adduce evidence relating to additional Employer business
operations including sign posting and sign painting. In response to an
objection from the Employer,31 I inquired as to the relevance of such
testimony, at which time counsel for Local 8–A made the following statement:
It is our position
that Daniel Construction is directed to construction. And what we
believe is that this is a typical 9(c) operation, not a shape up or discrete
jobs where crews are created and then let go for particular jobs. What we have
here is a typical bargaining unit. A non-construction unit.
In its brief Local
8–A argues that even without being given the opportunity to develop the record
as to any additional types of work performed by the Employer, it is clear from
the testimony that the Employer has a core group of employees that come back
year after year, and that there is no evidence of intermittent, as opposed to
seasonal, employment or that a substantial number of the employees involved
work for several different employer’s during the year.32
Counsel
for Local 8-A acknowledged, however, that no request for review of the Acting
Regional Director’s Decision and Direction of Election had been filed. Nor were
there objections to the election. Accordingly, I ruled that I would not allow
relitigation of the voter eligibility formula in the instant proceeding, and
hereby affirm that ruling. See Sitka Sound
Seafoods, 325 NLRB 685 (1998), where the Board affirmed
the Regional Director’s overruling of objections to an election which were, in
essence, an attempt to relitigate the eligibility formula used therein, where
the Board had previously denied review as to that issue.33
Miguel, who is
Freire’s son, also has a familial relationship with two other owners of the Employer.
The Excelsior list submitted by the Employer indicates that during the time
frame of the election, Miguel and Freire lived on the same street, but not at
the same street address.34 Miguel attended college between 1999
and 2002 and worked only summers during this time. The record establishes,
however, that he was not the only employee to have done so during this period.
Miguel subsequently worked for the Employer on a seasonal basis, and it appears
from the record that this was during 2004–2005. Miguel accrued no seniority
during the years that he worked solely during his summer vacation periods and
consequently, had the least seniority of all of the employees. While employed,
Miguel’s terms and conditions of employment were governed by the collective-bargaining
agreement with Local 917, as well as other shop-wide practices. Thus, he worked
a regular shift, the same hours as other employees, earned the contractual wage
rate, and enjoyed contractual benefits. There is no evidence that he enjoyed
special privileges such as reduced work hours or longer break or meal periods.
The record additionally establishes that Miguel never worked as a foreman, had
no supervisory or managerial authority, and was a member of Local 917.
Ortiz alleged that
Miguel was afforded special privileges such as: “[g]oing to
It is well settled
that a “party seeking to exclude an individual from voting has the burden of
establishing that the individual is, in fact, ineligible to vote.” Regency
Service Carts, Inc., 325 NLRB 617, 627 (1998) (quoting Golden Fan
Inn, 281 NLRB 226, 230 fn. 24 (1986)).
The Board “has long
hesitated to include the relatives of management in bargaining units because
their interests are sufficiently distinguished from those of other employees.” Palagonia
Bakery, 339 NLRB 515, 536 (2003); R&D
Trucking, Inc., 327 NLRB 531, 532 (1999); T.K. Harvin
& Sons, 316 NLRB 510, 533(1995). “The greater the
family involvement in the ownership and management of the company, the more
likely the employee relative will be viewed as aligned with management and
hence excluded.” NLRB v. Acton
Automotive, 469 U.S. 490, 494–495 (1985); Palagonia Bakery,
supra at 536. The Board however, does not exclude an employee simply because he
or she is related to a member of management. International
Metal Products Co., 107 NLRB 65 (1953). Rather, the Board
considers a variety of factors in deciding whether an employee’s familial ties
are sufficient to align his interests with management and thus warrant his
exclusion from the bargaining unit. In this regard, the Board utilizes an “expanded
community of interest test” to determine whether relatives of owners of
closely-held corporations should be excluded from the unit, weighing such
factors as how high a percentage of stock the parent or spouse owns, how many
of the shareholders are related to one another, whether the shareholder is
actively engaged in management or holds a supervisory position, how many
relatives are employed as compared with the total number of employees, and
whether the relative lives in the same household or is partially dependent on
the shareholder. Futuramik
Industries, Inc., 279 NLRB 185 (1986) (citing NLRB v. Action
Automotive, supra). An employee relative may be excluded from the unit even
though he or she enjoys no special job related privileges, if other criteria
establish that his interests are aligned with management, NLRB v. Action
Automotive, supra at 495; see also Palagonia Bakery, supra at 536.
In the instant case, Miguel is a relative of management; thus, it is need not
be shown that he enjoys job-related privileges in order to find his interests
more closely aligned with management and, therefore, that he does not share a
community of interest with other bargaining unit employees.
Although it is not
essential that job related privileges be shown it is, however, an important
factor considered by the Board in assessing whether the employee in question
shares a sufficient community of interest with other employees. In Blue Star
Ready Mix, 305 NLRB 429, 430–431 (1991), the Board overruled
the challenge to the ballot of the grandson of one owner (and nephew of
another), finding that he shared a community of interest with other employees.
In that instance, the employee in question was a college student who lived with
his owner-grandfather.36 Although he had started work at a slightly higher wage than
other employees, he was otherwise subject to the same time, attendance, and
disciplinary procedures and received the same benefits. In the absence of any
significant job related privileges, the Board found this relative of management
shared a community of interest with other employees. Cf. Luce &
Sons, Inc., 313 NLRB 1355, 1356 (1994); R&D
Trucking Co., supra (relatives of management who enjoyed special
job-related privileges excluded from unit.)
In the instant
case, Miguel is the son of one, and related to two other owners of the Employer
who collectively own 60 percent of the stock of the corporation. Moreover,
Freire is apparently the highest ranking manager of the Employer. Nevertheless,
there is insufficient probative evidence to establish that Miguel received any
job-related privileges as a result of his relationship to Freire, or any of the
other owners to whom he is related. Although Miguel was able to work during his
summer vacations from college, this option was also available to other
employees. Similarly, although Miguel was apparently allowed to take vacation
time during his work season, Freire’s testimony, which was corroborated by the
Petitioner, was that other employees could do so as well. Miguel was subject to
the terms and conditions of employment set forth in the Local 917 collective-bargaining
agreement, including the contractual seniority rules and at no time occupied a
supervisory or managerial position. Although Miguel was apparently allowed to
take a leave of absence to assist another family member who was recuperating
from an injury, there is record evidence that other employees are allowed to
take sick leave to care for themselves or other family members. Under all the
circumstances, therefore, I do not view this as a job related privilege that
would disqualify Miguel from eligibility in light of the other factors which
would militate toward his placement in the unit. Blue Star Ready Mix,
supra. I further note that although Freire testified that the two currently
share a home, the Excelsior list submitted by the Employer showed that
Miguel and Freire did not live together at the time of the election, although
they resided on the same street. Nor is there evidence that Miguel was a
dependent of Freire’s at any relevant time. Cf. Futuramik Industries,
supra at 186.
In its brief, Local
8–A apparently contends that the Regional Director erred in finding that Miguel
met the Daniel Construction eligibility formula based upon December 2005
payroll records. Relying upon these and prior records, the Regional Director
found that Miguel was employed for at least 45 days during the 24 months immediately
preceding the October 19, 2006 election eligibility date, and had “some employment”
during the 12 months preceding that date, consisting of 40 hours during the payroll
period ending December 10, 2005. As Local 8–A notes in its brief, the hours in
question were listed under a different classification from that of other
employees and at the hearing Office Manager Lago testified that this payment
was for accrued vacation time. The Employer’s payroll records otherwise show
that Miguel last worked during the payroll period ending October 15, 2005 (with
a pay date of October 21), and that during this period he worked 24 hours on
unspecified days. Thus, Local 8–A argues Miguel was not employed during the
12-month period immediately preceding the voter eligibility date and therefore
he is an ineligible voter herein.
The issue of
whether Miguel’s work history satisfies the Daniel Construction voter eligibility
formula, raised for the first time in Local 8–A’s posthearing brief, is not
arguably encompassed by those issues set for hearing by the Regional Director.
Moreover, although Local 8–A may have a valid claim that it would not have had
access to the underlying evidence so as to enable it to advance such an
argument as an initial matter, both the payroll records and Lago’s testimony
became part of the record during the course of the hearing. This newly-asserted
basis for the challenge to Miguel’s ballot was not raised by Local 8–A at any
time where the other parties could be provided with notice or have an
opportunity to respond or to present evidence in response to such assertions
and thus, was not litigated herein. Local 8–A has provided no legal authority
to persuade me that it would be proper to consider this issue under such
circumstances. I conclude therefore, that even if I were to assume that the
evidence would support Local 8–A’s contentions in this regard,37 it is not
appropriate for me to consider this newly asserted and clearly not litigated
basis for the challenge to Miguel’s ballot. See e.g. J.K. Pulley
Co., 338 NLRB 1152, 1153 (2003) (citing Precision
Products Group, 319 NLRB 640 (1995).38
Based
upon the foregoing, I conclude that the Petitioner and Local 8–A have failed to
meet their respective burdens of establishing that Miguel is not an eligible
voter herein. Accordingly, I recommend that the challenge to his ballot be overruled.
Danny
Travers
Travers had been
employed as a laborer with the Employer since 2001. Freire, Lago and Ortiz all
offered testimony that at the time of his layoff in December 2005, Travers had
not quit his employment. He applied for unemployment benefits later that
winter, and sought and obtained employment as a chef. Ortiz testified that, in
April 2006, he heard “rumors” that Travers had quit. A few months later, during
the summer, Ortiz and his fellow crew members had occasion to meet Ortiz for
lunch. According to Ortiz, at this time Travers stated that he was going to
culinary school and enjoyed being a chef. According to Freire, at no time did
Travers notify the Employer that he did not intend to return to work. Travers
did not testify herein, and there is no further substantive testimony regarding
his status at any relevant time.
Petitioner
challenged Travers’ ballot on the grounds that he had voluntarily quit his employment
prior to the election. At the hearing in this matter, Local 8A raised a
secondary argument to the effect that Travers evinced an intention not to
return to work for the Employer, and that this renders him an ineligible voter
herein. In its brief, Local 8–A raises the further argument that the challenge
to Travers’ ballot should be sustained because he was not called back to work
in December 2006 because of seasonal, weather-related issued but because of a
downturn in business that necessitated fewer employees. Local 8-A argues that
where there is a layoff caused by a decline in the amount of available work,
the employer does not have an intent to recall the employee and there is no
reasonable expectation of working in the same workplace in the future.
The record evidence
establishes that Travers was laid off for the winter season in December 2005,
along with most of Respondent’s other employees. Both Freire and Lago testified
that Travers never informed them that he had quit his employment. Ortiz stated
on cross-examination that Travers never said that he was quitting in December
2005.
Based upon the
record herein, there is insufficient probative evidence that Travers voluntarily
quit his employment prior to the last job for which he was employed, Daniel
Construction, supra; Steiny &
(1) The
Respondent/Employer is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
(2) Local 917 and
Local 8–A are each labor organizations within the meaning of Section 2(5) of
the Act.
(3) By discharging
Alecc Ortiz because he filed a decertification petition with the Board,
Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1), (3), and (4) and Section 2(6) and (7) of the Act.
Remedy
Having found that
the Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent
having discriminatorily discharged Ortiz, it must offer him reinstatement and
make him whole for any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as computed
in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings
of fact and conclusions of law and on the entire record, I issue the following
recommended40
ORDER
The Respondent, Iberia Road Markings
Corp.,
1. Cease and desist
from
(a) Discharging or
otherwise discriminating against employees to encourage or discourage
membership in any labor organization or for soliciting or obtaining signatures
or filing with the National Labor Relations Board any petition for decertification
of a labor organization.
(b) In any like or
related manner interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed to them by Section 7 of the Act.
2. Take the
following affirmative action necessary to effectuate the policies of the Act
(a) Within 14 days
from the date of the Board’s Order, offer Alecc Ortiz full reinstatement to his
former job, or if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privilege
previously enjoyed.
(b) Make Alecc
Ortiz whole for any loss of earnings and other benefits suffered as a result of
the discrimination against him, in the manner set forth in the remedy section
of this decision.
(c) Within 14 days
from the date of the Board’s Order, remove from its files any reference to the
unlawful discharge and within 3 days thereafter notify Ortiz in writing that
this has been done and that the discharge will not be used against him 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 the Respondent has taken to comply.
It
is further recommended that the
challenges to the ballots of Alecc Ortiz, Miguel Freire, and Danny Travers be
overruled and that they be opened and counted.
Dated,
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 or otherwise
discriminate against employees to encourage or discourage membership in any
labor organization or for soliciting or obtaining signatures or filing with the
National Labor Relations Board any petition for decertification of a labor organization.
We will not in any like or related
manner interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
We will Within 14 days from the date of
the Board’s Order, offer Alecc Ortiz full reinstatement to his former job, or
if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privilege previously enjoyed.
We will make Alecc Ortiz whole for any
loss of earnings and other benefits suffered as a result of the discrimination
against him.
We will within 14 days from the date of
the Board’s Order, remove from our files any reference to the unlawful discharge
and we will within 3 days
thereafter notify Ortiz in writing that this has been done and that the discharge
will not be used against him in any way.