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,
Camaco Lorain Manufacturing Plant and United Automobile, Aerospace and Agricultural
Implement Workers of
December 18, 2008
ORDER REMANDING
By Chairman Schaumber and Member Liebman
On May 2, 2007, Administrative Law Judge Keltner W. Locke issued the attached bench decision and certification. The General Counsel 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 remand this case to the judge for further findings, analysis, and
conclusions consistent with this Order Remanding.[1]
The complaint alleges that the Respondent violated Section 8(a)(1) by interrogating employees Raphy Vargas[2] and Alejandro Velazquez about their union activities and by creating the impression that those activities were under surveillance. The complaint further alleges that the Respondent violated Section 8(a)(3) and (1) by suspending employee Samuel Serrano and then discharging him. The judge dismissed each of those allegations.
In exceptions, the General Counsel contends that the judge made key factual errors in reporting the testimony, that he offered minimal support for his credibility determinations, and that his legal analysis is not consistent with the record. Based on our review of the record, we find merit to aspects of the General Counsel’s exceptions and shall remand this proceeding to the judge for further examination and a written decision.[3]
Alleged Interrogation and Creation of the Impression
of Surveillance
On April 25, 2006,[4]
six of the Respondent’s employees, including employees Vargas and Velazquez,
met with a union organizer at a restaurant in
The judge found that Jones did not unlawfully interrogate Vargas or Velazquez, and that Jones’ questions did not create the impression that their union activities were under surveillance. Regarding the interrogation allegation, the judge applied Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). Rossmore House directs the Board to consider whether, in light of all of the circumstances, the questioning would have reasonably tended to coerce the employee in the exercise of rights protected by Section 7 of the Act. Relevant factors include whether the employer had previously shown hostility to protected conduct, the nature of the information sought, the identity of the questioner, the place and method of interrogation, and the truthfulness of the employee’s reply. See Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964), cited with approval in Rossmore House, supra at 1178 fn. 20. The judge found that all of those factors weighed against finding that Jones’questions were unlawful.
With respect to the truthfulness factor, the judge found that the employees’ replies—one a denial and the other silence—weighed against finding the questioning unlawful. However, there is no evidence that either Vargas or Velazquez was an open union adherent. As the General Counsel points out, the Board has held that employee efforts to conceal their sentiments (i.e., a lack of truthfulness) in response to employer questioning about union activity actually supports a finding that the questioning was coercive. Bourne, supra at 48; see also Sproule Construction Co., 350 NLRB 774, 774 fn. 2 (2007) (questioning was coercive, in part, because job applicants sought to conceal their support for the union); accord: Grass Valley Grocery Outlet, 338 NLRB 877, 877 fn. 1 (2003). The judge should address that precedent on remand.
In addition, the judge found that Vargas and Velazquez
reasonably would have interpreted Jones’ questions as a joke, because employees
had joked about the union meeting. Based
on that finding, the judge also found that the employees would not have
inferred from Jones’ questions that their union activities were under
surveillance. The judge found that Jones
credibly testified that some employees had joked about the
Suspension of Samuel Serrano
On May 25, employee Samuel Serrano allegedly made a threatening statement to lead man Frank Dellipoala about Supervisor Jones: that Jones “was going to pay.” On May 30, after investigating the incident, the Respondent suspended Serrano for 3 days.[6]
The judge found that the Respondent’s suspension of Serrano was not unlawful. Applying Wright Line,[7] the judge concluded that the General Counsel did not establish that Serrano’s protected activities were a motivating factor in his suspension. The judge found employer knowledge of Serrano’s activities and assumed, for the sake of analysis, that those activities were protected. He found, however, that the evidence did not establish that the Respondent harbored animus toward Serrano’s activities. The judge further found that, assuming the General Counsel met the initial Wright Line burden, the Respondent demonstrated that it would have suspended Serrano even in the absence of his protected activity. Here, too, we are troubled by aspects of the judge’s analysis, particularly with respect to the issue of unlawful motivation.
First, although the judge found that Human Resources Manager Karin Mayfield did not take account of Serrano’s protected activities, Mayfield testified that the discipline of Serrano was a “team” decision, rather than hers alone. It appears from the record that Jones (who allegedly interrogated Vargas and Velazquez) may have been instrumental in that decision. Furthermore, although the judge concluded that the Respondent was aware of Serrano’s protected activities, he did not address whether that knowledge was imputable to any of those who participated in the decision to suspend Serrano. The judge should address those issues on remand.
Second, in finding that the General Counsel failed to establish a link between Serrano’s protected activities and his suspension, the judge determined that the record contained no evidence of animus other than Jones’ questions to employees about the union meeting, which he found to be lawful. As discussed above, we are remanding that finding for further analysis. In addition, the judge did not discuss other record evidence pertinent to the issue of unlawful motivation. For example, the timing of Serrano’s suspension may be probative of unlawful motivation. See Real Foods Co., 350 NLRB 309, 311 (2007) (the suspicious timing of an adverse employment action in relation to protected activity can support an inference of unlawful motivation); Davey Roofing, Inc., 341 NLRB 222, 223 (2004) (same). Jones testified that Serrano had started out as one of his favorite employees, but in early spring of 2006—that is, shortly after Serrano contacted the Union—”the tables turned.” Jones also testified that, “knowing I’d given [Serrano] good evaluations and whatnot in the past, and now all of a sudden the guy’s turning on you like a pit bull, I knew I had to start getting some documentation.” Given the timing of Jones’ change in attitude toward Serrano, the judge should have addressed whether there was any link between that change and Serrano’s union activity.
Third, the record establishes, and the judge found, that Jones could be a difficult supervisor, and that, on at least one occasion, a group of employees complained to Mayfield about Jones’ treatment of the employees. The judge’s decision, however, does not mention undisputed evidence that Serrano met with Mayfield about Jones’ treatment of employees earlier on the very day that Jones initiated the discipline of Serrano. The General Counsel contends that the record supports an inference that Serrano’s protected complaints to Mayfield played a role in Jones’ decision to recommend discipline against Serrano. Given the judge’s failure to even discuss the issue, we are unable to properly assess the merits of the General Counsel’s exception on that point.
Fourth, the judge’s decision suggests that lead man Frank Dellipoala reported Serrano’s alleged threat to Human Resources Manager Mayfield. The record, however, appears to show that it was actually Jones who reported the incident to Mayfield, after he heard about Serrano’s statement from Dellipoala. Mayfield’s file notes indicate that Jones told her that Serrano had threatened him and that he was gathering evidence to terminate Serrano. The difference may be significant. If, in reexamining the evidence, the judge finds that it was Supervisor Jones, not Dellipoala, who reported Serrano’s alleged threat, then the judge should also reexamine his finding regarding the Respondent’s affirmative defense that Serrano would have been disciplined even in the absence of his protected activities.
Finally, although not discussed by the judge, the record indicates that Jones did not report a similar, contemporaneous threat by another employee. Employee Daniel Clarkston testified without contradiction that, shortly after the Respondent suspended Serrano, Clarkston told Jones that he was going to punch Human Resources Manager Mayfield. Jones, however, did not report Clarkston’s threat or otherwise initiate disciplinary action against him. There is no indication whether the judge considered Clarkston’s testimony, or whether Jones’ apparently differing treatment of Serrano and Clarkston undercuts the Respondent’s affirmative defense or supports a finding of unlawful motivation. While the judge suggested that Serrano’s eccentric behavior would have caused the Respondent to take his threat seriously, he did not explain that conclusion, however, or cite Serrano’s eccentric behavior to distinguish his situation from Clarkston’s.
In sum, the bench decision’s analysis of Serrano’s suspension reflects apparent material factual errors and omissions, unresolved credibility determinations, and an oversight of relevant record evidence. Accordingly, we are unable to evaluate the merits of the General Counsel’s exceptions regarding this complaint allegation, and shall remand the issue to the judge for a more complete analysis.
Discharge of Samuel Serrano
In late August, General Manager Mike Allen introduced an incentive program designed to increase production at the Respondent’s facility. According to the judge’s decision, during a meeting at which Allen introduced the incentive program to the employees, Serrano stated that he was not willing to make the effort required for the program to succeed. The judge found that, assuming the General Counsel met his initial Wright Line burden, the Respondent nevertheless demonstrated that it would have discharged Serrano even in the absence of his protected activities for his stated unwillingness to perform. The judge reasoned that, although Serrano had previously engaged in protected concerted activity when he “join[ed] with another employee to protest the program,”[8] Serrano “spoke for himself when he expressed unwillingness to try to meet the production standard.” The judge concluded that because the Respondent discharged Serrano for making that statement, his discharge was lawful.
The General Counsel argues that the judge’s analysis is flawed because there is no evidence that Serrano made any comment about the incentive program during General Manager Allen’s meeting to introduce the program. Nor is there evidence that Allen was involved in the postmeeting discussion where Serrano expressed his complaints about the new program to other employees. See footnote 8, infra. Having carefully reviewed the record, it appears that the General Counsel’s assertions are correct. Accordingly, in light of this factual error, the judge should reassess his analysis with respect to the Serrano discharge allegation.
Allen did not testify that Serrano criticized the incentive program during a meeting, much less the one at which the program was introduced to employees. Rather, Allen testified that he terminated Serrano because of comments that Serrano made when Allen approached him on the production floor to ask him why he was unable to meet the target production rate.[9] According to Allen, Serrano replied that he was not going to “bust his butt,” and that it “wasn’t worth a buck more an hour.” Allen testified that he decided to terminate Serrano later that day. In addition to this factual error, the judge failed to discuss, or make any credibility findings with respect to, the testimony of Serrano or the other employees present during Allen’s conversation with Serrano.
In the absence of detailed factual findings and credibility resolutions, we are unable to resolve the General Counsel’s exceptions to the judge’s finding that the Respondent lawfully discharged Serrano. Accordingly, we shall remand the case to the judge so that he may reconsider the record evidence, make credibility determinations, and provide an analysis explaining the basis for his findings.
Conclusion
We remand this proceeding to the judge with the following instructions: The judge shall afford the parties an opportunity to file briefs addressing the remanded issues,[10] reexamine the record in this case, and provide a written decision addressing each of the contested complaint allegations. The decision shall specifically set forth credibility determinations regarding all of the relevant record testimony, a complete and accurate statement of the relevant facts pertaining to each issue, and a new legal analysis of each issue. In remanding this case, we express no opinion as to the correctness of the judge’s original disposition of the merits of the contested complaint allegations.
ORDER
It is ordered that this proceeding is remanded to Administrative Law Judge Keltner W. Locke for further action consistent with this Order.
It is further ordered that the judge shall afford
the parties an opportunity to file briefs addressing the remanded issues, and
shall prepare
and serve on the parties a supplemental decision setting forth credibility
resolutions, findings of fact, conclusions of law, and a recommended Order, as
appropriate on remand. Copies of the
supplemental decision shall be served on all parties, after which the
provisions of Section 102.46 of the Board’s Rules and Regulations shall be
applicable.
Dated,
Peter C. Schaumber, Chairman
Wilma
B. Liebman, Member
(seal) National
Labor Relations Board
Cheryl Sizemore, Esq., for the General Counsel.
Richard
R. Mellott, Jr., Esq. (Trigillo &
Stephenson, P.L.L.), of
BENCH DECISION AND CERTIFICATION
Statement of the Case
Keltner W. Locke, Administrative Law Judge. I heard this case on March 13 and 14, 2007,
in
Additional Analysis
In
the present case, a supervisor testified that when he asked employees about
attending a “meeting” (meaning a union meeting), he was joking. As Judge Scully observed in Nicholas
County Health Care, 331 NLRB 970, 977 (2000), the “unlawful effect of a
coercive statement is not blunted by the fact that it is accompanied by
laughter or made in a humorous way. Meisner
Electric, Inc., 316 NLRB 597, 599 (1995).”
My conclusion that the supervisor did not violate the Act is consistent
with this longstanding principle.
As
noted in the bench decision, the supervisor’s intent in making a statement or
asking a question generally is not relevant to determining whether that
statement interfered with, restrained, or coerced employees in the exercise of
their Section 7 rights. Rather, the
Board evaluates a statement’s potential for such coercion based upon what that
statement reasonably would communicate to an employee. The “only joking” excuse fails to cleanse
statements of their coercive effect because employees can still detect the
threat behind the smile and be affected by it.
Considering
the unusual facts of this case, I have concluded not only that the supervisor
actually was trying to make a joke (itself irrelevant to an 8(a)(1) finding)
but also that the employees reasonably would understand it as such. One reason for this conclusion is that the
employees, not the supervisor, initiated the joke. Because they originated the humor, they reasonably
would be less likely to view the supervisor’s remark as a reflection of management
hostility towards or improper curiosity about employees’ protected activities.
It
should be stressed that this analysis creates no sort of bright–line rule and
that who originated the joke is only one of the factors which I considered in
this rather unusual case.
With
respect to Respondent’s 1-day suspension of employee Sam Serrano in May 2006, I
note that the record does not establish that Human Resources Director Mayfield
bore any hostility towards Serrano or took into account his protected activities. Even though Serrano denied making the “threat”
for which he received the suspension, I conclude that Mayfield believed that he
had. The statement attributed to Serrano
was somewhat vague, but in view of his eccentric behavior, it would be reasonable
for her to be concerned about it.
In
the bench decision, I concluded that the General Counsel had not established
the initial four elements under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), adding that
even if the record had proven these elements, Respondent had carried its rebuttal
burden of showing that it would have taken the same action in any event, even
in the absence of protected activity.
In
general, a respondent carries this rebuttal burden with evidence that it had
treated other, similar employees in the same way in similar situations. However, Serrano’s atypical behavior affected
how Respondent evaluated the words attributed to him. In view of Serrano’s eccentricities, it would
seem unlikely that Respondent previously had dealt with a similar employee
under similar circumstances.
As
the Board recently observed in International Baking Co., 348 NLRB 1133
(2006), it is not the law that an employer can prevail only by showing prior
identical misconduct and discipline.
Based on the present record, I conclude that had the government established
the initial four Wright Line elements, Respondent still would have
carried its rebuttal burden.
In
reaching the conclusion that Respondent lawfully discharged Serrano, I
distinguish his criticism of the Respondent’s new incentive program from his
statement indicating that he would not make the effort for the program to
succeed. Serrano’s joining with another
employee to protest the program constituted protected, concerted activity. However, he spoke for himself when he
expressed unwillingness to try to meet the production standard.
Conclusions of Law
1.
The Respondent, Camaco Lorain Manufacturing Plant, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2.
The Charging Party, United Automobile, Aerospace and Agricultural Implement
Workers of America, UAW, Region 2B, is a labor organization within the meaning
of Section 2(5) of the Act.
3.
The Respondent did not violate the Act in any manner alleged in the complaint.
On
the findings of fact and conclusions of law herein, and on the entire record in
this case, I issue the following recommended.2
ORDER
The
complaint is dismissed.
Dated
APPENDIX A
BENCH DECISION
This
decision is issued pursuant to Section 102.35(a)(10) and Section 102.45 of the
Board’s Rules and Regulations.
Procedural History
This
case began on September 18, 2006, when the United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, Region 2–B, which I will refer
to as the “
After
an investigation, the Regional Director for Region 8 of the National Labor
Relations Board issued a Complaint and Notice of Hearing dated November 30,
2006. In doing so, the Regional Director
acted for the General Counsel of the Board, whom I will refer to as the
“General Counsel” or the “government.”
The
General Counsel amended the Complaint and Notice of Hearing, which I will call
the “Complaint,” once before and once during the hearing. Respondent filed timely answers to the Complaint
and its amendments.
On
March 13, 2007, a hearing opened before me in
Admitted Allegations
In
its Answers to the Complaint and its amendments, Respondent admitted a number of
allegations. Based on those admissions,
I find as follows:
The
Respondent,
a
During
all times relevant to the allegations in the Complaint, the following
individuals were Respondent’s supervisors within the meaning of Section 2(11)
of the Act and its agents within the meaning of Section 2(13) of the Act: General Manager Mike Allen, Human Resources
Manager Karin Mayfield, and Supervisor Lewie Jones.
At
all material times, the
Contested Allegations
Complaint Paragraph 6
The
subparagraphs of Complaint paragraph 6 allege that in April 2006 Respondent, by
its supervisor, Lewie Jones, made unlawful statements to employees, more
specifically, that Jones interrogated employees about their Union activities,
created the impression that the Respondent was engaged in surveillance of their
Union activities, and stated that such Union activities would be futile.
The
record establishes that some time in the first part of 2006, employee Samuel
Serrano contacted the
Employee
Alejandro Velazquez testified that after he returned from this meeting, Supervisor
Jones came up to where he was working and asked “How was the meeting?” Velazquez did not answer but continued to
work. Jones never asked him again about
any type of Union meeting,
Jones
denied making the statement in question.
Therefore, I must determine which testimony should be credited. At the time of the hearing, Velazquez
remained employed by Respondent.
Therefore, it was not in his interest to give testimony which might
result in a finding adverse to Respondent.
That factor militates in finding Velazquez’ testimony to be credible.
Respondent,
however, had discharged Jones before the date of the hearing. Although Jones did not manifest any hostility
towards his former employer, it would be reasonable to conclude that he would
not be inclined to slant his testimony in favor of a company which had
discharged him. Thus, any biasing effect
of employment status would be about equal for both Velazquez and Jones. Therefore, it provides no basis for
determining which testimony more likely is reliable.
Similarly,
my observations of the demeanor of both witnesses do not help decide which
testimony to credit. Both witnesses appeared
to be telling the truth.
Jones
particularly impressed me because of his willingness to admit when he did not
know the answer to a question. In other
respects, he seemed candid almost to the point of bluntness. In view of this candor, I would be reluctant to
conclude that Jones untruthfully denied asking about the meeting because
personal pride prompted him to conceal a possible unfair labor practice.
In
sum, both witnesses seemed to be reliable and any credibility resolution
necessarily would entail too much guesswork for comfort. However, a decision must be made and, for two
reasons, I credit Velazquez.
First,
another witness, Raphy Argas, testified that Jones asked him a similar question. According to Argas, the day after the
meeting, Jones approached him and asked, “How was the meeting yesterday?” Argas replied that he did not know what
meeting Jones was talking about, and Jones did not say anything else.
Argas
also remained employed by Respondent and the record provides no reason to
believe that he harbored a grudge against his employer or its management. There is no reason to doubt the truthfulness
of his testimony.
Second,
Jones plausibly testified that because of Serrano’s personality and behavior at
work, there was no possibility that he would be effective in persuading others
to support a union. Specifically, he
said that Serrano did not have the “clout” to bring in a union and that other
workers regarded him as a kind of “problem child.”
For
reasons discussed later in this decision, I conclude that Jones was not making
up an opinion about Serrano to serve his own purposes but instead honestly
believed it to be the case. Whether or
not other employees regarded Serrano as a “problem child,” they would have
little incentive to follow him.
Jones
credibly testified that employees joked about Serrano’s effort to organize a
union. When punching out on the time
clock, some announced that it was “time to go to Denny’s.” Crediting Jones on this point, I find that
some employees did joke in this manner, leading Jones also to regard it as a
joke.
Which
is why, ultimately, I conclude that Jones did ask employees how they enjoyed
the meeting. It seemed to him an innocent
joke rather than a serious attempt to discourage employees from union
activity. The fact that Jones did not say
“union meeting” but only “the meeting,” and the fact that he never again
brought up the subject, leads me to conclude that his questions were about the
meeting were merely an unsuccessful attempt at humor.
Of
course, Jones’ intent in asking the questions is irrelevant. As the Board stated in Waco, Inc., 273
NLRB 746, 748 (1984):
Union animus is an element in 8(a)(3) cases, but generally is not an element in 8(a)(1) cases. “It is too well settled to brook dispute that the test of interference, restraint and coercion under Section 8(a)(1) of the Act does not depend on an employer’s motive nor on the successful effect of the coercion. Rather, the illegality of an employer’s conduct is determined by whether the conduct may reasonably be said to have a tendency to interfere with the free exercise of employee rights under the Act.” [Citing Daniel Construction Co., 264 NLRB 569 (1982).]
During oral argument, Respondent’s counsel addressed the test which the Board should use to determine whether an alleged interrogation reasonably would tend to interfere with, restrain, or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. Specifically, Respondent cited Bourne Co. v. NLRB, 332 F.2d 47 (2d Cir. 1964).
In
Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees
Union Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), the Board applied
the standards articulated by the court in Bourne. The Bourne test factors are as
follows:
1.
The background, i.e. is there a history of employer hostility and
discrimination?
2.
The nature of the information sought, e.g. did the interrogator appear to be
seeking information on which to base taking action against individual employees?
3.
The identity of the questioner, i.e. how high was he in the Company hierarchy?
4.
Place and method of interrogation, e.g. was employee called from work to the
boss’s office? Was there an atmosphere of “unnatural formality”?
5.
Truthfulness of the reply.
See also Mediplex of Danbury, 314 NLRB 470, 472 (1994). Donaldson Bros. Ready Mix, Inc., 341 NLRB No. 124 [958] (May 19, 2004).
With
respect to the first Rossmore House factor, the record does not
establish a history of employer hostility or discrimination. Although the record includes references to a
previous settlement, the government did not offer any settlement agreement into
evidence, so it is not possible to determine whether such an agreement, if it
exists, includes a non-admissions clause.
In
Painters District Council 9 (We’re Associates), 329 NLRB 140, 143
(1999), the judge noted that informal settlement agreements and formal
settlement stipulations containing non-admission clauses cannot be used to
establish a proclivity to violate the Act.
Thus, the only type of settlement agreement that can be used to
establish proclivity to violate the Act is a formal settlement, without a
non-admission clause. See Teamsters Local Union No. 122, International
Brotherhood of Teamsters, AFL–CIO, 334 NLRB No. 137 [1190] (2001).
The
General Counsel bears the burden of proving antiunion animus, including, in the
Rossmore House context, establishing a past history of employer
hostility or discrimination. There is no
indication that Respondent ever entered into a formal settlement without a
non-admission clause. Accordingly, I conclude
that the record does not establish any history of employer hostility or discrimination.
As
to the second Rossmore House factor, the record does not establish that
Jones was seeking information on which to base disciplinary action.
Jones
was a first–line supervisor, not a member of higher management. Additionally, he asked the questions in the
workplace, in what might be called the “employee’s domain” rather than in a
locus of authority. Thus, the third and
fourth Rossmore House factors also militate against a finding of
coercive interrogation.
The
fifth factor concerns the employee’s reply.
One of the employees, Velazquez, just kept working and did not
respond. The other denied knowing what
Jones was talking about, and Jones did not try to explain.
In
sum, all of the Rossmore House factors point against finding a violative
interrogation. Therefore, I recommend
that the Board dismiss these allegations.
Complaint
paragraph 6 also alleges that Jones’ questions created the impression of surveillance
and that Jones communicated to employees that union efforts would be
futile. Even in the absence of any
evidence that Jones mentioned any union when he spoke with Velazquez and Argas,
it would still be possible to find that questions created the impression of
surveillance if employees reasonably understood him to be asking about a Union
meeting and if, in context, the employees reasonably would interpret the
questions to convey an intent to spy on their union activities.
However,
I credit Jones’ testimony that the employees regarded Serrano’s attempts as a
joke, and conclude that they reasonably would understand Jones to have been
joking. It is true, of course, that a
statement can violate Section 8(a)(1) even if offered as a joke. In the unusual circumstances of the present
case, however, and particularly considering that employees themselves had joked
about the matter when they clocked out, I do not conclude that employees
reasonably would infer from Jones’ questions that Respondent really was placing
their union activity under surveillance.
Another
employee, Andre Vinson Cheers, testified that the day after the meeting at
Denny’s, Supervisor Jones asked him how the meeting went. Also, according to Cheers, Jones requested
that Cheers work late and then told him, “You’re smarter than Sam
[Serrano]. You’ve been around here
longer than him.” According to Cheers,
Jones added that there was not going to be a union in the plant, that employees
tried it before “and people got fired.”
However,
I do not credit Cheers’ testimony, which Jones denied. Respondent had discharged him and resentment
over that termination would incline him, if anything, to bend his testimony in
a way that hurt Respondent. Jones also
had been discharged, but testified in a way that did not offer him any satisfaction
of revenge.
Moreover,
Jones could be an abrasive supervisor if he became dissatisfied with an
employee’s work efforts. For all these
reasons, I do not believe Cheers’ testimony is as reliable as that given by
Jones.
Because
I credit Jones’ denials, I recommend that the Board dismiss the allegations
that Respondent told employees that attempts to unionize would be futile.
In
sum, I recommend that the Board dismiss all the allegations raised by Complaint
paragraph 6.
The 8(a)(3) Allegations
The
8(a)(3) allegations concern a one–day suspension which Serrano received in late
May 2006 and his discharge on August 23, 2006.
Serrano
began work for Respondent as a production employee in 2004 and initially received
good evaluations and raises. His supervisor,
Lewie Jones, credibly testified that at some point Serrano changed.
The
record does not establish whether Serrano displayed eccentric behavior from the
outset of his employment or whether his conduct became more bizarre over time,
but there is no doubt that he behaved in ways different from other employees.
For
example, at one point during his testimony, Supervisor Jones testified that
Serrano sometimes hopped around the factory instead of walking. When Jones gave this testimony, Serrano was
sitting beside counsel for the General Counsel at the counsel’s table. After Jones described the hopping, Serrano
smiled, or perhaps grinned would be a better description, and nodded his head
affirmatively.
Regarding
work performance, Jones credibly testified that Serrano was, in effect, a good
worker when he wanted to be, particularly when Jones was around. However, Jones then cited the expression
about when the “cat was away the mice will play,” to indicate that Serrano’s
work became less productive in the supervisor’s absence.
As
already noted, Jones could be a difficult supervisor, and on at least one
occasion, a number of employees complained to the human resources director
about how Jones had treated them.
Serrano frequently complained to the human resources director about
Jones and, for the sake of analysis, I will assume that he was complaining on
behalf of other employees as well as himself, making his complaints protected
concerted activity,
In
late May 2006, a lead man, Frank Dellipoala, reported to the human resources
director that he had seen Serrano throwing his hands up and down in the air
while standing by a machine. According
to Dellipoala asked Serrano what was wrong, Serrano said that he wasn’t going
to complain any more to the human resources director. Dellipoala quoted Serrano as saying words to
the effect that he was “about to go off.
This may be his domain in here, but it’s mine out there. Lewie is going to pay.” Serrano vehemently denied making this
comment.
However,
the human resources director suspended Serrano for one day. Serrano’s own testimony establishes that when
the human resources director told him of this suspension, Serrano fell to the
floor, grabbed his stomach, and told the human resources director that she had
hurt him. He explained that he did so as
a means of dramatizing his feelings.
Indeed,
Serrano’s demeanor while testifying was at least dramatic, and sometimes verging
on the theatrical. This apparent
partisanship called his credibility into question. There is no doubt that he engaged in
unconventional behavior, such as doing what another witness called “the gator,”
meaning lying on the floor and writhing to make a point.
In
analyzing whether Serrano’s one day suspension violated the Act, I will apply
the standards articulated by the Board in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). Under Wright Line, the
General Counsel must establish four elements by a preponderance of the evidence. First, the government must show the existence
of activity protected by the Act.
Second, the government must prove that Respondent was aware that the
employees had engaged in such activity.
Third, the General Counsel must show that the alleged discriminatees
suffered an adverse employment action.
Fourth, the government must establish a link, or nexus, between the employees’
protected activity and the adverse employment action. More specifically, the General Counsel must
show that the protected activities were a substantial or motivating factor in
the decision to take the adverse employment action. See, e.g., North Hills Office Services,
Inc, 346 NLRB No. 96 [1099] (April 28, 2006).
In
effect, proving these four elements creates a presumption that the adverse
employment action violated the Act. To
rebut such a presumption, the respondent must persuade by a preponderance of
the evidence that the same action would have taken place even in the absence of
the protected conduct. Wright Line,
251 NLRB 1083, at 1089; Hyatt Regency Memphis, 296 NLRB 259, 260 (1989),
enfd. in relevant part 939 F.2d 361 (6th Cir. 1991). See also Manno Electric, Inc., 321
NLRB 278, 280 at fn. 12 (1996).
For
the sake of analysis, I will assume that Serrano’s activities were
protected. Clearly, Respondent knew
about them. Additionally, there is no
doubt that a one–day suspension constitutes an adverse employment action.
However,
I conclude that the evidence falls short of establishing a nexus between the
protected activities and the suspension.
The only evidence of animus consists of Jones’ statements, already
discussed, pertaining to the Union meeting.
I have concluded that they did not violate the Act.
Moreover,
they do not otherwise establish a hostility which would result in a one–day
suspension a month later.
Accordingly,
I conclude that the government has not carried its burden. However, even if the General Counsel had
proven all 4 Wright Line elements, I would find that Respondent would
have taken the same action in any event.
Considering Serrano’s unconventional behavior, his statement about Jones
“going to pay” would be taken seriously.
Accordingly,
I conclude that the suspension did not violate the Act.
In
August 2006, Respondent’s general manager, Mike Allen, implemented a team
incentive system based on Japanese management practices. If a team made a certain production rate, 60
pieces per hour, then all members of the team would receive a dollar an hour
bonus.
Based
upon my observations, I credit Allen’s testimony. I conclude that during a meeting at which
Allen explained this program, Serrano said he did not intend to make the extra
effort needed to comply. After
considering this comment, Allen decided to discharge Serrano because his
unwillingness to make the effort kept the program from being effective. It also hurt the other members of the team.
Assuming
that Serrano’s complaints about the program were protected, I would conclude
that the government has established the initial 4 Wright Line
elements. However, I would further conclude
that Respondent has proven that it would have discharged Serrano in any event
for his unprotected statement that he would not make the effort required for
the program to be a success.
The
unique nature of this team program required every employee on a team to be
dedicated to making the goal. An expressed
unwillingness to do the work doomed the program to failure from the start.
In
sum, I conclude that Respondent did not act unlawfully in any manner alleged in
the Complaint. Accordingly, I recommend
that the Board dismiss the Complaint in its entirety.
When
the transcript of this proceeding has been prepared, I will issue a
Certification which attaches as an appendix the portion of the transcript reporting
this bench decision. This Certification also will include provisions relating
to the Findings of Fact, Conclusions of Law, Remedy, Order and Notice. When that Certification is served upon the
parties, the time period for filing an appeal will begin to run.
Throughout
this proceeding, counsel for both parties have demonstrated great civility and
professionalism which did expedite this proceeding tremendously. That civility and professionalism has been
noted and appreciated. The hearing is
closed.