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,
Chinese Daily News
and Communications Workers of
December 22, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On December 26, 2007,
Administrative Law Judge Lana H. Parke issued the attached decision. The Respondent and the General Counsel filed
exceptions and supporting briefs. In response, the Respondent and the General
Counsel filed answering briefs, and, thereafter, both filed reply briefs.
The Board[1]
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 only to the extent consistent with this Decision and Order.
The complaint alleges,
inter alia, that during depositions
taken in connection with a Federal class-action lawsuit[3],
the Respondent violated Section 8(a)(1) by interrogating employees about their
union support and activities. The judge
found no violation and dismissed this allegation. For the reasons discussed below, we reverse
the judge and find that the Respondent violated Section 8(a)(1) in this
respect.
Relevant Facts
On March 5, 2004, employee
Lynne Wang and two other employees brought a class-action wage-and-hour lawsuit
in Federal district court against the Respondent on behalf of themselves and
similarly situated employees. Employees
Shieh-Sheng Wei and Jeffrey Sun provided declarations in support of the motion
for class certification. Wang, Wei, and Sun were longstanding and open union
supporters.
The Respondent sought to disqualify
the plaintiffs as representative plaintiffs.
The Respondent asserted that the class action was a pretext for the
plaintiffs’ “real” motivation--advancing the Union’s organizing interests among
the Respondent’s employees—and, therefore, that the plaintiffs would not act in
the best interests of the class.
After the Federal district
court certified the class in November 2004, the Respondent filed a motion for reconsideration. In denying the Respondent’s motion, the
court found that the Respondent had failed to
establish that the class-action suit was filed to pressure the Respondent to
unionize, and further found that the plaintiffs’ alleged involvement in
bringing unfair labor practice charges against the Respondent would not conflictwith
their ability to adequately represent class members in a wage-and-hour
lawsuit. See Wang et al. v. Chinese Daily News, Inc. et al., 231 F.R.D. 602
(C.D. Cal. 2005), affd. 159 Fed. Appx. 750 (9th Cir. 2005).
Following the court’s
dismissal of the Respondent’s motion for reconsideration, litigation of the
case proceeded.[4] The Respondent deposed plaintiff Wang and
supportive declarants Wei and Sun in connection with the wage-and-hour
allegations.[5] During the depositions, the Respondent’s
attorney, Mark Palin, asked Wang, Wei, and Sun questions related to their union
sympathies and union-related activities.
Those questions are summarized below.
Wei was deposed on June 14
and July 26 of 2005. During the
depositions, Palin asked Wei numerous questions about his role with regard to
the
Sun was deposed on June 28,
2005. During the deposition, Palin asked
Sun about his involvement in the union organizing campaign and whether he was,
or considered himself to be, a shop steward.
Wang was deposed on August
24, 2005. Palin asked Wang about a
letter that had been written to the chairman of the Respondent’s parent company
in
Judge’s Findings
The judge found that the
Respondent’s questioning of Wang, Wei,
and Sun in the course of their depositions in the class-action lawsuit did not
violate the Act. The judge applied the
test set forth in Guess?, Inc., 339
NLRB 432, 434 (2003), petition for review dismissed without prejudice, 2003 WL
22705744 (D.C. Cir. 2003). Under that
test, the Board considers whether the questioning is relevant to the lawsuit,
and, if so, whether it has an illegal objective. If the questioning is found to be relevant
and without an illegal objective, the Board must then consider whether the
Respondent’s need for the information outweighs employees’ Section 7
rights.
Applying this test to the
facts of this case, the judge found that the Respondent’s questioning of Wang,
Wei, and Sun about the extent of their involvement with the Union and
union-related activities was relevant to the Respondent’s defense that the plaintiffs
in the case should be disqualified as class representatives. The judge also
found that the General Counsel had presented no evidence of unlawful
motivation, and that the Respondent did not give any indication that it would
take retaliatory action following the depositions.
The judge further found
that Wang, Wei, and Sun did not have substantial confidentiality interests
under Section 7 to weigh against the Respondent’s need for the information at
issue. The judge reasoned that, because
the deponents were open and longstanding union supporters who had “confronted”
the Respondent with a class-action lawsuit, they could not have been expected
to remain “anonymous,” nor could they have expected that their support for the
In addition, the judge
found that the Respondent’s questioning of the deponents was not coercive. In so finding, the judge found that the
Respondent’s questions were “clearly intended to create a legal record,” and
that “neither the deposition questions nor their context suggests any element
of coercion or interference with protected rights.” She also observed that the Respondent’s
questioning of Wang, Wei, and Sun focused only on the deponents’ own personal
union activities and not on those of other employees.
The judge concluded that,
in light of the deponents’ limited interest in confidentiality and the
Respondent’s significant interest in
defending itself against the class- action lawsuit, the Respondent’s depositions
questions did not constitute unlawful interrogation under the Act.
Analysis
For the reasons discussed
below, we reverse the judge and find that the Respondent violated the Act by
unlawfully interrogating Wei during his deposition. Specifically, we find that the Respondent’s
question to Wei—”[D]id you vote for the union to win the election?”—violated
Wei’s Section 7 rights. We express no
opinion on whether any other deposition question posed by the Respondent, or
indeed the Respondent’s entire line of inquiry, was relevant to the litigation
or ultimately was unlawful under the controlling legal standard. Additional findings of unlawful interrogations
with respect to those questions would be cumulative and would not affect the
Order.
As did the judge, we apply
the test set forth in Guess?. We begin by assuming arguendo that the Respondent’s questioning of Wei whether he voted
for the
We turn, then, to the final
prong of the Guess? analysis: whether
Wei’s Section 7 interest in the confidentiality of his vote outweighs the
Respondent’s need for this information.
We find, contrary to the
judge, that Wei’s interest in maintaining the confidentiality of his vote in
the election was substantial. The Board
has recognized that “the secrecy of balloting . . . is a hallmark of our
election procedures.” See Fessler & Bowman, Inc., 341 NLRB
932, 934 (2004). The Board has also
consistently recognized that an employer’s interrogation[8] of
an employee concerning how that employee intends to vote, or has voted, in a
secret-ballot election violates the Act, notwithstanding the employee’s open
advocacy for the
We next find that the
Respondent has not shown that its need for the information concerning Wei’s
vote justified the infringement on his Section 7 right to maintain the
confidentiality of his vote. As noted
above, the Respondent contends that its questioning of Wei was necessary to
develop two aspects of its litigation defense:
(1) that the class should not be certified because the plaintiffs would
not represent the best interests of the class, and (2) that Wei, Wang, and Sun
had an inherent bias against the Respondent due to their union support. Although we assume arguendo that Wei’s
support for the
Accordingly, we find that,
during its deposition of Wei, the Respondent unlawfully interrogated Wei in violation
of Section 8(a)(1) by asking him to reveal how he voted in the election.
ORDER
The National Labor
Relations Board orders that the Respondent, Chinese Daily News, Monterey Park,
California, its officers, agents, successors, and, assigns, shall
1. Cease and desist from
(a) Promulgating and
maintaining an unlawful dress code policy prohibiting employees from wearing
union insignia.
(b) Promulgating and
maintaining an overly broad no-solicitation/distribution policy prohibiting
employees from engaging in solicitation and distribution of literature in
nonwork areas.
(c) Directing employees to
stop talking about terms and conditions of their employment with coworkers.
(d) Unlawfully
interrogating employees about conduct protected by Section 7 of the Act.
(e) In any like or related
manner, interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following
affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the unlawful
dress code policy prohibiting employees from wearing union insignia.
(b) Rescind the unlawful
no-solicitation/distribution policy prohibiting employees from engaging in
solicitation and distribution of literature in nonwork areas.
(c) Within 14 days after
service by the Region, post at its facilities in
(d) 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
the Respondent has taken to comply.
It
is further ordered that the complaint is
dismissed insofar as it alleges violations of the Act not specifically
found.
Dated,
Peter
C. Schaumber, Chairman
Wilma
B. Liebman, Member
(seal) National Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
The National Labor
Relations Board has found that we violated Federal labor law and has ordered us
to post and obey this notice.
FEDERAL LAW GIVES YOU
THE RIGHT TO
Form, join or assist a union
Choose representatives to
bargain with us on your behalf
Act together with other employees
for your benefit and protection
Choose not to engage in any
of these protected activities.
We
will not promulgate and maintain an
unlawful dress code policy prohibiting employees from wearing union insignia.
We
will not promulgate and maintain an
overly broad no-solicitation/distribution policy prohibiting employees from
engaging in solicitation and distribution of literature in nonwork areas.
We
will not direct employees to stop talking
about terms and conditions of their employment with coworkers.
We
will not unlawfully interrogate employees
about their conduct protected by Section 7 of the Act.
We
will not in any like or related manner
interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
We
will rescind our unlawful dress code
policy prohibiting employees from wearing union insignia.
We
will rescind our unlawful
no-solicitation/distribution policy prohibiting employees from engaging in
solicitation and distribution of literature in nonwork areas.
Chinese Daily News
Irma Hernandez and
Ami Silverman, Esqs., for the General Counsel.
Steven D. Atkinson and Thomas A. Lenz, Esqs. (Atkinson, Andelson, Loya, Ruud &
Romo), of
Eric D. Geist, Administrative Director to the
Vice President, of
DECISION
Statement of the Case
Lana H. Parke, Administrative Law Judge. This matter was tried in Los Angeles, California, on October 1 through 4, 2007, upon an amended consolidated complaint (the complaint) issued April 18, 2006, by the Regional Director for Region 21 of the National Labor Relations Board (the Board) based upon charges filed by Communications Workers of America, AFL–CIO (the Union.) The complaint, as amended, alleges Chinese Daily News (the Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act).1 Respondent essentially denied all allegations of unlawful conduct.
Issues
1. Did Respondent independently violate Section 8(a)(1) of the Act by the following acts: on February 9, 2004, directing an employee not to talk about employee overtime issues; on June 14 and 28, July 26, and August 24, 2005 respectively, interrogating employees in the course of deposing them.
2. Did Respondent violate Section 8(a)(3) and (1) of the Act by the following acts: on and after January 29, 2004, promulgating and maintaining a dress code prohibiting the wearing of union insignia and promulgating and maintaining an overly broad no-solicitation/no-distribution rule; in late June or early July 2004, refusing to assign employee Shieh-Sheng Wei certain shift rotations and shift assignments, resulting in loss of overtime pay; and on August 17, 2004, issuing a written warning to employee Shieh-Sheng Wei.
On the entire record,2 including my observation of the demeanor of witnesses and after considering the briefs filed by the General Counsel and the Respondent, I make the following
Findings of Facts
i.
jurisdiction
At all relevant times, the Respondent, a California corporation,
with facilities located at 1588 Corporate Center Drive, Monterey Park, California,
and 1230 Monterey Pass Road, Monterey Park, California, has been engaged in the
business of publishing and distributing newspapers and selling books.3 During the 12-month period ending February 16,
2006, a representative period, Respondent, in conducting its business operations
described above in paragraph 2(a), derived gross annual revenues in excess of
$200,000. In addition, the Respondent
held membership in or subscribed to various nationally syndicated features, and
advertised nationally sold products.
During the same time period, Respondent purchased and received goods
valued in excess of $50,000, which goods were shipped directly to Respondent’s
Southern California facilities from points located outside of the State of
ii. background
The Respondent is a major Chinese-language daily newspaper
published in
At relevant times, the following individuals served in the following positions as supervisors and agents of the Respondent:
|
Ming Sheng Su (President Su) |
President |
|
Bo Li (Mr. Li) |
Asst. Business Manager |
|
Ren-Shiun Wing (Group Leader Wing) |
Group Leader |
The Respondent’s packing department handles its newspaper bundling and distribution functions. Assisted by Deputy Group Leader Ching Hwa Kao (Deputy Group Leader Kao), Group Leader Wing supervised the packing department at all relevant times. Four to six full-time and part-time packing employees operated two bundling machines.
Consequent to a representation petition filed by the Union
on October 26, 2000,4 the
Board conducted an election in a wall-to-wall unit of the Respondent’s
employees on March 19, 2001, in which a majority of the votes was cast for the
On April 17, 2006, the Board
issued a Decision and Order, affirming in part the February 25, 2005
decision of Administrative Law Judge Clifford H. Anderson. Chinese Daily News, 346 NLRB 906 (2006),
enfd. 224 Fed.Appx. 6 (D.C. Cir. 2007).
The Board found, inter alia, that in 2001, the
Respondent had committed numerous violations of the Act, including threats,
interrogation, distribution of a memo prohibiting employees from discussing
union matters, issuance of a warning letter to employee Lien-yi (Lynne) Wang
(Wang) for her remarks at a union rally, and an increase in Wang’s beat assignments
after she led a reporters’ protest against the Respondent’s proposed beat
changes.
Throughout and following the above-described proceedings,
the Union has maintained an ongoing postelection campaign to retain employee
support for the
iii. alleged
unfair labor practices
A.
Alleged Promulgation and Maintenance of Overbroad
Solicitation/Distribution Rule and Discriminatory Dress Code
On December 12, 2003, the Respondent hosted a year-end
buffet dinner for all employees and management on the facility’s fourth floor
in recognition of a visit from a top management official from
At the December 12, 2003 party, classified advertising supervisor, Karen Lee (Lee), commented on Wang’s attire, saying, “What are you wearing? We don’t have a union.”
Wang, said, “Yes, we have a union; don’t you know that?”
Wei’s supervisor, Group
Leader Wing, commented on Wei’s attire, saying that since the union shirts were
free, he, too, would have enough courage to wear them.6
Two days later, Wang again wore the union vest to a company welfare committee meeting attended by the human resource manager, Steven Gao (HR Manager Gao), General Manager David Liu, and Lee. Lee criticized Wang for wearing the union vest. Wang replied that the company had no dress code, and employees could wear anything. Thereafter, Wang continued to wear the union vest at work until the Respondent issued a dress code at the end of January 2004.
On January 29, 2004, President Su distributed a 1-page document in Chinese to all employees (solicitation/dress code rules), the English translation7 of which reads, in pertinent part:
To avoid interruptions of business operation, our employees are not allowed to do any promotion unrelated to the Company or distribute any paper advertisement at workplace or during work [time].8 Those who are not Company employees are not allowed to enter the premises of the Company, including parking lot, to promote or distribute paper advertisement. (Business visits are excluded).
During work time, the time spent in engaging in or receiving promotion or distribution of paper advertisement is deemed a violation of using normal work time; break time and meal time are not included.
I would also like your attention of the following important regulation because many colleagues have reported to the management that: some employees during work time wear jackets not printed with “Chinese Daily News” name or logo instead with names or logos of other entities, including the name or logo of Communications Workers of America (CWA). This is a violation of Company regulation.
It is your personal choice whether you choose to support or against workers union. Nevertheless, the Chinese Daily News’ concern is those who come to work wearing jackets printed with non-Chinese Daily News name or logo; when they have contacts with customers or public for business, they may misrepresent their identities and cause unnecessary mistakes and fail to achieve the missions at work.
On this note, I would like to stress again the rule we have followed always: during work, those employees who have business contacts with customers or general public are not allowed to wear CWA jackets to work. This rule applies to employees including reporters, drivers, business reporters, and those who may have direct business contacts with customers or general public.
The solicitation/dress code rules were issued to employees, including Wei, who have no contact with the public, as well as to employees who meet with the public. Prior to the issuance of the solicitation/dress code rules, the Respondent had no dress code and no rules restricting dissemination of written materials or promotion of employee activities. Employees had regularly worn T-shirts with commercial advertising imprinted such as “ATT” and “Toshiba,” and both before and after issuance of the rules, the Respondent permitted employees to distribute to fellow employees such entrepreneurial solicitations as dry cleaning offers and clothing and food sales promotions. After the Respondent issued the solicitation/dress code rules on January 29, 2004, employees no longer wore clothing with union insignia.
B.
Shieh-Sheng Wei: Written Warning and Alleged Work
Assignment Change
In preparing the newspapers for delivery, the packing department utilizes two large machines to bundle the newspapers in two sequential stages: bundling of retail newspapers and bundling of postal newspapers. A group of two to three employees operates each machine, both of which function nonstop during each stage. If it is necessary for an employee to leave the machine during operation, the group leader or deputy group leader momentarily replaces the absent employee.
On June 14, 2004, after the packing employees completed the initial bundling stage, one of the machines stopped operating. When Group Leader Wing inquired why, Deputy Group Leader Kao told him that one of the operators, Hong Nian Gao (Hong Gao) had left to go to the restroom. Group Leader Wing took the place of Hong Gao, until the missing employee returned, whereupon he returned to his office. From his office, Group Leader Wing saw Hong Gao arguing with Deputy Group Leader Kao and returned to the bundling area where he learned that Hong Gao was upset with Deputy Group Leader Kao because he believed the deputy group leader had reported his absence from the machine. To resolve the problem, Group Leader Wing announced that henceforth packing employees would be permitted a 5-minute period to use the restroom between the two bundling stages.
According to Wei, the following exchange occurred: Group Leader Wing said employees would receive no other break opportunity during the bundling cycles. Wei loudly protested, saying such a rule would deprive the workers of their born human rights. Group Leader Wing in turn loudly accused Wei of scolding and cursing him. Wei denied cursing Group Leader Wing or using foul language.
Group Leader Wing testified that Wei scolded him, saying Group Leader Wing “did not want to keep [his] face”9 and accusing him of staying in his office and not helping with the work. Group Leader Wing said Wei publicly humiliated him by saying “F— your mother,” in front of the other workers, to which he responded in a loud voice, “You all heard the profanity he yelled to me.” In his 25 years of employment, Group Leader Wing said, he had never heard any other employee curse a supervisor. Deputy Group Leader Kao in pertinent part corroborated Group Leader Wing’s testimony of the June 14, 2004 confrontation. Like Group Leader Wing, he had never before heard an employee speak to a group leader in that manner.10
Later on the day of the confrontation, Group Leader Wing prepared a report of the incident, which he furnished to the Respondent’s human resources department:
Report of an argument
Time: June 14, 2004, 4:35 AM
Location: Inside the packing department
Description: On
that day all retail newspapers was completed by 4:35 AM, and the following procedure
would be to insert postal newspapers.
Some employees went to the bathroom and didn’t return to the workstation
when other employees started to insert the newspaper. One of them was [Hong Nian Gao] who started
to argue with deputy group leader [Ching Hwa Kao] when he came back from the
bathroom. . . . In handling the argument,
for the sake of fairness, I said that the policy from now would be that there
is an extra 5 minutes of rest time and one may do anything one wishes. . .
. Upon that [Wei] shouted aloud saying
that won’t work—what if I can’t go in the time you specified? I said, “That is your business, not mine.” Then he was very unwilling to be receptive
and said, shame on you, why don’t you come out to work on collecting
newspapers, instead you are inside the office.
He repeated shame on you several times.
Then he humiliated and insulted me in public with [four-letter] word “[f—]
your mother.” I had given advice and
warning to that employee because of his smoking during the bundling time at
work, he was also required to pay attention during insert. Furthermore, at the book-giving campaign in
January this year, the same employee had major complaints and disobeyed the
instructions when I instructed all employees help to move the sorted and boxed
books to the big truck to be transported to the freight station at China Airlines
to be transported to
On the day following the incident, June 15, 2004, Wei gave Group Leader Wing a letter written in Chinese, which Wei desired him to present to various managers, including President Su. The English translation of the letter, in pertinent part, is as follows:
On June 14, department leader [Group Leader Wing] of the Packing Department made a public announcement at the workplace that the employees of the Packing Department are only allowed to go to bathroom after the retail newspapers are sent out, and the bathroom time is set for 5 minutes. If the bathroom break is not used, it is deemed to be waived. No one is allowed to use bathroom at any other time during work . . . . It is an abuse to limit the duration and set the specific time for bathroom. Even the prisoners do not have this rule, why would the Newspaper allow it to happen?11
After reviewing Group Leader Wing’s report, HR Manager Gao, who knew Wei was a union supporter, instructed Group Leader Wing to get a report of the incident from another witness. Group Leader Wing had already asked the Deputy Group Leader Kao to provide a report, which Group Leader Wing thereafter submitted to HR Manager Gao. The report, as translated in pertinent part into English, read:
Report of argument that occurred.
Time: 6/14/04 4:35 a.m.
Location: Packing Department.
Description of occurrence: On that day, when . . . the insertion of the retail newspaper was complete . . ., one insert machine did not operate because [employees Hong Gao and Zhou Lan] left the location without telling anyone. At the time, the group leader did ask the whereabouts of the two employees and to make the inserting machine to operate normally, he came over to support. But unexpectedly, when [Hong Gao] came back, he misunderstood that I reported something to the group leader and became angry and ballistic. . . . The group leader repeated that from that time on, there is a five minute time for break, so that hoping no one will leave the work station without notifying other people. However, at that time, [Wei] used this reason to start an argument with the group leader and started using words that is not proper and started scolding with insulting words. With the handling of this situation: on 6/15/04, [Hong Gao] voluntarily came to apologize.
Group Leader Wing appended a disciplinary recommendation to Deputy Group Leader Kao’s report: “The above is all true. I ask upper management to use most severe written warning, so that if there’s any recurrence, the person will be terminated.”
After reviewing Group Leader Wing and Deputy Group Leader Kao’s reports, HR Manager Gao sought permission from President Su to issue “severe” warnings to the two employees involved. On August 17, 2004, the Respondent issued nearly identical written warnings to Hong Gao and Wei.12 The warning to Wei, over the signature of Group Leader Wing, read:
After reviewing the incident that took place on June 14, 2004, [y]ou are being placed on disciplinary action effective August 11, 2004. The decision to place you on disciplinary action is due to verbal misconduct and insubordination towards your supervisor. If these type of similar verbal misconduct and/or insubordination happen again, you may be consider[ed] for termination.13
According to Wei, thereafter the Respondent no longer assigned him to begin work at midnight rather than 2:50 to 8 a.m., effectively reducing his work hours. Group Leader Wing denied reducing Wei’s hours. According to the group leader, Wei was unwilling to come in early. On several occasions, Group Leader Wing testified, Wei told him he could not handle the extra hours because he was unable to sleep well. Wei also requested reduced work hours or days because of child care issues. Wei denied requesting reduced hours, testifying that only prior to the year 2000, had he requested a Sunday off every 2 months so he could visit a handicapped child. Wei asserted that the Respondent has continuously reduced his work hours because of his union activity since the year 2000, but Wei also admitted he told Group Leader Wing he preferred to work only two of the three weekend shifts (Friday, Saturday, and Sunday), as they involved very heavy work. Wei agreed that since 2004, part-time packing employees rarely began work at midnight and that employees who work the weekend shifts generally have more work hours than those who do not, as the heavier weekend work load generates longer shifts.
The parties introduced extensive payroll records into evidence,
and both the Respondent and the General Counsel argue that the records support
their respective positions. The records
fail to demonstrate any clearly discernible pattern of inequality in Wei’s
weekly shifts as contrasted with those of other part-time packing employees
that would not be consistent with Wei’s
preferring to work only two of each week’s three longest shifts. The records do show that following August 17,
2004, Wei did not work any midnight shifts.
C. Alleged Prohibition on Employee Discussion of Overtime
Sun, one of the Respondent’s drivers was an active union supporter, who wore the union vest to work almost daily from December 2003, to the end of January 2004.14 Sometime prior to February 2004, the Respondent hired several part-time newspaper delivery drivers, which limited the overtime hours available to the full-time drivers. The full-time drivers, including Sun signed and submitted to management a letter complaining about the reduced overtime.
In late January or early February 2004, a driver named Chen (driver Chen) discussed an overtime concern with Sun, who encouraged him to report fully all of his overtime. On February 9, 2004, Assistant Business Manager Li called Sun into his office with the director of the circulation department, Bobby Hsu (Hsu) present. Li showed Sun a copy of driver Chen’s timecard, saying that driver Chen had complained about overtime and had mentioned Sun’s name. According to Sun, Li told him the company had to hire part-time drivers for the good of the newspaper and that he hoped in future Sun would not talk to his coworkers about overtime and rights, so that their work morale would not be affected.
Li did not testify about the conversation. Hsu denied that Li had told Sun not to talk about overtime. According to Hsu, Li told Sun he had heard rumors were circulating that the company did not pay overtime, which was untrue. According to Hsu, Li told Sun the company must and did pay overtime if overtime was worked and the Respondent did not want “these kinds of rumors just spread out.” Li told Sun he could talk about anything to his coworkers but it must be based on the truth, that he could not tell untruthful things—nonsense—to employees.15
D. Deposition of Employee/Plaintiffs
On March 5, 2004, employees Wang, Yu Fang Ines Kai, and
Hui Jung Pao (employee/plaintiffs) on behalf of themselves and all others
similarly situated filed a class action complaint (class action lawsuit)
against the Respondent in the United States District Court of the Central
District of California, for, inter alia, violations of the Fair Labor Standards
Act. Represented by Mark T. Palin, of
Atkinson, Andelson, Loya, Ruud & Romo, the Respondent sought to disqualify
the employee/plaintiffs on grounds that the class action was a pretextual
strategy for the true motivation of advancing the
In the course of defending the class action lawsuit, the Respondent
deposed Wei, Sun, and Wang. Although
only Wang was a named plaintiff in the class action lawsuit, Wei and Sun were two
of six employees whose declarations the employee/plaintiffs submitted to
District Court Judge Consuelo B. Marshall in support of the motion for class certification. See Wang
v. Chinese Daily News, Inc., 231 F.R.D. 602, 608, 615 (9th Cir. 2005), appeal
denied 159 Fed.Appx. 750 (9th Cir. 2005). The three employees were deposed on the
following dates:
|
June 14 and July 26, 2005— |
Mr. Wei |
|
June 28, 2005
— |
Mr. Sun |
|
August 24, 2005 — |
Ms. Wang |
During the depositions of Wei, the Respondent questioned
him about his role and involvement in the Union, whether he voted for the
During the deposition of Sun, the Respondent questioned him about whether he was involved in the union organizing campaign and whether he was or considered himself to be a union shop steward.
During the deposition of Wang, the Respondent questioned her about the filing and disposition of nine unfair labor practice charges filed with the Board that alleged the Respondent’s unlawful conduct toward her because of her union activities, about an employee letter presented to the chairman of the Respondent’s parent company, and about a 2002 trip to Taiwan to educate Taiwanese people about the Union.
iv. discussion
A. Alleged Independent 8(a)(1) Violations
1. Alleged prohibition on employee discussion of overtime
The General Counsel contends the Respondent violated Section 8(a)(1) of the Act on February 9, 2004, when its assistant business manager, Li, expressing concern for employee work morale, told employee Sun not to talk to his coworkers about overtime and rights.
Employees have a protected right to discuss among themselves the terms and conditions of their employment of which overtime is one. Where, as here, the Respondent has expressly prohibited employee discussion of overtime wages and other terms and conditions of employment, the rule plainly infringes on Section 7 rights and violates the Act. Double Eagle Hotel & Casino, 341 NLRB 112, 115 (2004). Accordingly, I find that the Respondent violated Section 8(a)(1) of the Act when Li directed Sun not to talk to coworkers about overtime and other employee rights.
2. Alleged interrogation in the course of depositions
The General Counsel argues the Respondent violated Section 8(a)(1) of the Act by unlawfully interrogating employees Wei, Sun, and Wang during the course of depositions taken in connection with the class action lawsuit.
In determining whether deposition inquiries about union activities
violate the Act, the Board looks at whether the questioning is relevant and if
so, whether it has an illegal objective.
If the questioning is found to be “both relevant and lacking an illegal objective, the analysis must then consider
whether the Respondent’s need for the information outweighs the employees’ rights under Section 7 of the Act.” Guess?,
Inc., 339 NLRB 432, 434 (2003); see also Allied Mechanical, 349 NLRB 1077 fn. 1 (2007).
When the Respondent took their depositions, Wei, Sun, and
Wang were longstanding conspicuous union adherents who openly espoused the class
action lawsuit, Wang as a plaintiff and Wei and Sun as supportive
declarants. The Respondent argued,
albeit unsuccessfully, that the employee/plaintiffs should be disqualified from
bringing the class action lawsuit because their true motivation was to advance
the
In weighing employer need against employee rights, the
Board’s decisional stance on interrogation is instructive. In the Board’s view, an employer’s questioning
of employees about their union sentiments is not a
per se violation of Section 8(a)(1) of the Act, particularly where employees
are open and active union supporters. The
test is whether, under all the circumstances, the interrogation reasonably
tends to restrain, coerce, or interfere with statutory rights. To support a finding of illegality, the words
themselves, or the context in which they are used, must suggest an element of
coercion or interference. Rossmore House, 269 NLRB 1176, 1177–1178
(1984), affd. 760 F.2d 1006 (9th Cir. 1985).
The Board considers criteria referred to as
the “Bourne factors,”16 which examine whether the interrogated
employee is an open and active union supporter, the background of the
interrogation, the nature of the information sought, the identity of the
questioner, and the place and method of interrogation. The Board has not considered employer
interrogation to be coercive in the following circumstances: questioning
of open and active union supporter about prounion mailgram he sent to employer,
Rossmore House, supra; asking
employee with a union-embossed hard hat if he supported the union, Tradesmen
International, Inc., 351 NLRB No. 37
(2007); asking about the union membership of an applicant whose membership was
already obvious, Boydston Electric,
331 NLRB 1450 fn. 5 (2000); and inquiring into whether misconduct had occurred
during a discussion about the union, Bridgestone
Firestone South Carolina, 350 NLRB 526 (2007). But see Allied
Mechanical, supra, where deposition questions irrelevant to the civil
action inquired into confidential, protected conduct, and Guess? Inc., supra, slip op. 6, where deposition questions about
the identities of other employees who attended union meetings violated Section
8(a)(1) of the Act.
Here the union advocacy of the three deponents was open and longstanding; the employees had confronted the Respondent in a class action lawsuit certain, if not calculated, to attract intracompany attention. None of the deponents could reasonably have expected that he/she could remain anonymous in the matter, and the deposition questions posed by the Respondent’s attorney could not have been intended to expose any unknown or confidential information. The Respondent’s questions focused on the deponents’ union activities, not those of others.17 The questions were clearly intended to create a legal record, and neither the deposition questions nor their context suggests any element of coercion or interference with protected rights. Upon applying the Board’s balancing test, I find the confidentiality interests of the three deponents were not substantial inasmuch as they had, long prior to the depositions, overtly revealed their union sentiments to the Respondent and fellow employees and signified, through their previous union activities as well as their participation in the lawsuit, their intentions of championing employee rights. On the other hand, I find the Respondent’s interest in obtaining the information was significant, as the union partisanship of the three employees was a basic element of its preliminary defense to the lawsuit. The Respondent’s interest therefore outweighed the employees’ confidentiality interest under Section 7 of the Act. Accordingly, I find the Respondent did not violate Section 8(a)(1) of the Act when Palin deposed Wei, Sun, and Wang in connection with the class action lawsuit.
B. Alleged 8(a)(1) and (3) Violations
1.
Promulgation and maintenance of overbroad solicitation/
distribution rule and discriminatory dress code
An employer has a right to impose some restrictions on employees’ statutory right to engage in union solicitation and distribution. Such restrictions, however, must be clearly limited in scope so as not to interfere with employees’ right to solicit their coworkers on their own time or to distribute literature on their own time in nonwork areas. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); Our Way, Inc., 268 NLRB 394 (1983).
In its solicitation/dress code rules, the Respondent informed its employees that they were prohibited from engaging in any promotion unrelated to the Company or from distributing “any paper advertisement at workplace or during work [time] [emphasis added].” This phrase in the solicitation/dress code rules is susceptible to a reasonable construction that solicitation on company premises, at any time, is prohibited.18 The Respondent’s rule relative to solicitation/distribution is, therefore, unlawful on its face. Since the rule is presumptively unlawful, the Respondent has the burden of showing that it communicated or applied the rule in such a way as to convey clearly its intent to permit solicitation at the workplace during break times or other nonwork periods. Ichikoh Mfg., Inc., 312 NLRB 1022 (1993). The Respondent has not met that burden. The evidence shows that following its solicitation/distribution ban, the Respondent neither explicated nor retreated from its published rules. Since the Respondent’s ban was overbroad, I find the Respondent violated Section 8(a)(1) of the Act by promulgating its solicitation/dress code rules. There is, however, no evidence of discriminatory enforcement. See Federated Logistics & Operations, 340 NLRB 255 (2003). I shall, therefore, dismiss the 8(a)(3) allegations of complaint paragraph 6(b).
The Respondent also implemented a dress code by its solicitation/dress
code rules. Employees have a right under
Section 7 of the Act to wear and display union insignia while at work. Republic Aviation Corp. v. NLRB, 324
In its solicitation/dress code rules, the Respondent purports to direct that employees with public contacts may not wear “jackets printed with non-Chinese Daily News name or logo.” However, on its face, the dress restriction is ambiguous as to whom, when, and where it would apply. Introductorily, the notice states, “[S]ome employees during worktime wear jackets not printed with ‘Chinese Daily News’ name or logo instead with names or logos of other entities, including the name or logo of Communications Workers of America (CWA).” This asserted violation of company policy encompasses all employees in the workplace and can be construed to apply to employees who have no public contact. In the next paragraph, the notice explains, “[W]hen [employees wearing non-company identifying clothing] have contacts with customers or public for business, they may misrepresent their identities and cause unnecessary mistakes and fail to achieve the missions at work,” but the brief explanation does not make it clear that only employees with public contact are prohibited from coming to work wearing clothing with noncompany insignia. Finally, in repeating the rule in the penultimate paragraph of the notice, the Respondent stresses that “during work, those employees who have business contacts with customers or general public are not allowed to wear CWA jackets to work [emphasis added].” Although this sentence facially restricts employees with customer contact, it also specifically targets union insignia for prohibition, which signals a discriminatory purpose having little to do with avoiding identity confusion. The Respondent’s pointed bias against union identifying clothing is likely to restrain all employees who are apt to infer that the prohibition has more to do with union animus than with public image. Taken as a whole, the dress code is so ambiguously worded that employees may reasonably construe it as prohibiting all employees from wearing union-identifying clothing at the workplace. The solicitation/dress code rules are therefore overbroad.
The Respondent has presented no evidence that it clearly
communicated to employees, by application of the rules or otherwise, its intent
to apply the clothing restrictions in a lawful manner. Moreover, the Respondent failed to establish
any special circumstances to justify the rule.
The Respondent’s general concern about potential misrepresentation of employee
identity by the wearing of noncompany-enscripted clothing fails to meet “the Respondent’s burden of establishing the presence of ‘special circumstances’ to justify the rule’s
broad proscriptions.” Albertsons, Inc., 351 NLRB No. 21, slip
op. 5 (2007). Accordingly, I find
Respondent violated Section 8(a)(1) of the Act by issuing a dress code that
over broadly restricted employees’ wearing of union insignia.
In determining whether the solicitation/dress code rules
also violate Section 8(a)(3) of the Act, as the General Counsel alleges,
discriminatory intent must be shown. Allegations
that turn on employer motivation must be analyzed under Wright Line.19 Under that standard, the General Counsel must first show,
by a preponderance of the evidence, that protected conduct was a motivating
factor in the employer’s adverse action. Once the General Counsel makes that
showing by demonstrating protected activity, employer knowledge of that
activity, and animus against protected activity, the burden of persuasion
shifts to the employer to show that it would have taken the same adverse action
even in the absence of the protected activity. United
Rentals, Inc., 350 NLRB 951, 951 (2007).
As to the 8(a)(3) allegation relating to the Respondent’s promulgation
and maintenance of a dress-code rule prohibiting the wearing of clothing
bearing union insignia, the General Counsel has met his initial burden under Wright Line. The Board’s decision in Chinese Daily News, supra, which found
the Respondent had committed multiple violations of the Act demonstrates the
company’s union animus. Moreover, in
December 2003, the Respondent demonstrated its animosity toward its employees’
wearing of union-supportive apparel when Supervisor Lee twice criticized Wang
for wearing the union vest, saying, on the first occasion, “We don’t have a
union.” Further, the solicitation/dress
code rules on their face reveal the underlying union animus by specifically and
selectively targeting “CWA jackets” in the penultimate paragraph. The burden of proof therefore shifts to the
Respondent to demonstrate a nondiscriminatory basis for establishing a dress
code that restricted the wearing of clothing bearing union insignia. Respondent has failed to show that it would have issued its dress-code rules even in the absence
of its employees’ union activity. I therefore find the Respondent violated Section
8(a)(3) by promulgating and maintaining a discriminatory dress code in February
2004.
2. Shieh-Sheng Wei: written warning and alleged work
assignment change
Paragraph 8 of the complaint alleges the Respondent unlawfully issued a written warning to Wei on August 17, 2004. The question of whether Respondent violated Section 8(a)(1) and (3) of the Act by issuing Wei a written warning rests on its motivation. Therefore, the analytical framework of Wright Line, supra, must be applied.20 The General Counsel must first persuade, by a preponderance of the evidence, that Wei’s protected conduct was a motivating factor in any reduction of work hours and in the issuance of the warning. If the General Counsel is able to make such a showing, the burden of persuasion shifts “to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.” Wright Line, supra at 1089; Donaldson Bros, Ready Mix, Inc., 341 NLRB 958, 961 (2004).
The elements of discriminatory motivation are union activity,
employer knowledge, and employer animus. Verizon, 350 NLRB 542 (2007);
Farmer Bros. Co., 303 NLRB
638, 649 (1991). Here, the elements are
clearly met as to Wei, of whose open union support the Respondent was aware and
toward which, as noted above, the Respondent had general animus. Accordingly, I find the General Counsel has
met his initial burden by “making a showing sufficient to support the inference”21 that Wei’s protected activity was a
motivating factor in the Respondent’s post June 14, 2004 alteration of Wei’s
work hours22 and its decision to
issue him a warning notice on August 17, 2004.
The burden therefore shifts to the Respondent to demonstrate that it
would have issued the August 17 warning notice to Wei even
in the absence of his union activity.
The Respondent contends that on June 14, 2004, Wei engaged in verbal misconduct and insubordination toward his supervisor, Group Leader Wing, for which the Respondent issued him a warning notice dated August 17, 2004. Credited testimony establishes that on June 14, 2004, in the course of a dispute over restroom breaks, Wei scolded Group Leader Wing in front of the other employees, saying Group Leader Wing should be ashamed, and profanely insulting the group leader’s mother. Employers may discipline employees for profane language, provided such discipline is administered in a nondiscriminatory fashion. Bridgestone Firestone South Carolina, 350 NLRB 526, 532 (2007) (citations omitted).
The Respondent maintains Wei’s behavior was so egregious that his discipline was justified. The issue, however, is not whether the Respondent acted reasonably in issuing Wei a written warning, but whether the Respondent would have taken the same action, even if Wei were not an active union supporter and/or had not engaged in the protected activity of protesting the restroom break. See Wal-Mart Stores, Inc., 351 NLRB No. 17 (2007). “An 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 protected activity.” Weldon, Williams & Lick, Inc., 348 NLRB 822, 826 (2006).23 In the managerial communications regarding the discipline, no discriminatory motive can be discerned. No evidence was adduced of disparate treatment, as no evidence was presented that any employee had ever before used profanity to a supervisor. Counsel for the General Counsel argues that the delay between incident and discipline warrants an inference of unlawful intent. While it is true that 2 months elapsed before Wei received a written warning for his misconduct, the Respondent explained the lag time as resulting from press of business and hypercaution, a not unreasonable response to the Respondent’s ongoing labor problems. I cannot therefore infer improper motive from the timing of the warning. Counsel for the General Counsel further argues that HR Manager Gao’s failure to interview Wei before imposing discipline reveals the Respondent’s unlawful motive. Although HR Manager Gao did not ask for a statement from any employee witness to the incident except Deputy Group Leader Kao, there is no evidence that Respondent sought to shape or distort the investigation or that there was not genuine fact gathering.24 The Board declines to tell an employer how to investigate allegations of employee misconduct, and failure to investigate in a particular manner before imposing discipline does not establish an unlawful motive. Chartwells, Compass Group, USA, Inc., 342 NLRB 1155, 1158 (2004). I find the Respondent has met its shifted burden of proof as to the discipline imposed on Wei.
Paragraph 7 of the complaint alleges that since late June
or early July 2004, the Respondent discriminatorily refused to give Wei shift
rotations and shift assignments, which resulted in loss of overtime pay. Even assuming the Respondent disregarded Wei’s
shift preferences and assigned him work hours that resulted in lost overtime
pay, the evidence does not establish that the Respondent had an improper motive
in doing so. If involuntary alteration
in Wei’s hours occurred, any change would presumably be linked, as counsel for
the General Counsel argues, to his restroom-break confrontation with Group
Leader Wing. I have determined that the
Respondent did not unlawfully discipline Wei for his conduct during that confrontation,
and it follows that the Respondent did not unlawfully alter Wei’s hours or
refuse him shift assignments. Accordingly,
I find the Respondent did not violate Section 8(a)(1) and/or (3) of the Act by
its discipline of or shift assignments to Wei.
I shall, therefore, dismiss the complaint allegations of paragraphs 7
and 8.
Conclusions of Law
1. The Respondent, Chinese Daily News is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act.
2. The
3. Beginning on January 29, 2004, the Respondent violated Section 8(a)(3) and (1) of the Act by promulgating and maintaining a dress-code rule prohibiting the wearing of union insignia.
4. Beginning on
January 29, 2004, the Respondent violated Section 8(a)(1) of the Act by
promulgating and maintaining a rule prohibiting employees from engaging in protected solicitation/distribution during
nonworktime and in nonwork areas.
5. In February 2004, the Respondent violated Section 8(a)(1) of the Act by directing an employee to stop talking about terms and conditions of employment.
6. The unfair labor practices set forth above affect commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
Remedy
Having found the Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended25
ORDER
The Respondent, Chinese Daily News,
1. Cease and desist from
(a) Promulgating and maintaining a dress-code rule unlawfully prohibiting the wearing of union insignia.
(b) Promulgating and maintaining a rule prohibiting employees from engaging in protected solicitation/distribution during nonworktime and in nonwork areas.
(c) Directing any employee to stop talking about terms and conditions of employment.
(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facilities in
(b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply.
It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
We will not do anything that interferes with these rights. More particularly,
We will not announce and/or maintain a dress-code rule that unlawfully prohibits the wearing of union insignia.
We will not announce and/or maintain a rule prohibiting employees from engaging in union or other protected solicitation or distribution during nonworktime and in nonwork areas.
We will not tell any employee not to talk with other employees about terms and conditions of employment.
We will not in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights listed above.
We will rescind our January 29, 2004 dress-code and no-solicitation/no-distribution rules.
Chinese Daily News