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,
Case Farms of North Carolina, Inc. and
September 30, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On September 28, 2007,
Administrative Law Judge John H. West issued the attached decision. The General Counsel and the Respondent each
filed exceptions, a supporting brief, and an answering brief.
The
National Labor Relations Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm the judge’s
rulings, findings, and conclusions only to the extent consistent with this Decision
and Order.1
The
complaint in this case alleges that the Respondent violated Section 8(a)(1) of
the Act by discriminatorily discharging employees Luz Rodriguez and Evodia
Dimas a.k.a. Claudia Zamora2 because they engaged in the protected concerted activity of
complaining to the local press about employees’ working conditions. The judge concluded that Rodriguez’ discharge
was unlawful, but that Dimas’ discharge was not. We conclude that the Respondent violated the
Act by both discharges.3
i. facts
A.
The Work Stoppage
The
Respondent operates a poultry processing plant with a predominately immigrant
workforce. Employees wear latex gloves
when handling the poultry. Prior to
October 27, 2006,4 the Respondent provided each employee unlimited latex gloves at
no cost. On that date, it limited each
employee to three free pairs per day. Employees
requiring gloves beyond that number would have to pay 50 cents a pair.
The
same day, over 250 employees, including Rodriguez and Dimas, commenced an
in-plant work stoppage to protest the glove policy change. The Respondent repeatedly told the employees
to return to work or leave the plant.
When they did neither, the Respondent summoned police, who peacefully
escorted the employees off the premises.
The employees then gathered at a nearby church to discuss
their concerns. While there, Rodriguez
and Dimas spoke to newspaper reporters about the work stoppage and a range of
employee grievances in addition to the glove policy. On Sunday, October 29, the local newspaper
published an article about the work stoppage.
Rodriguez and “
All employees who walked out were permitted to return to work with no discipline on Monday, October 30. That morning, Human Resources Manager Victoria Soto King received an e-mail copy of the newspaper article from a company public relations official. King discharged Dimas at the end of the day, allegedly in response to an injury accommodation request. King suspended Rodriguez on October 31 and discharged her 3 days later, allegedly for misconduct on the production line.
B.
The Discharge of Dimas/Zamora
Dimas began working for the Respondent in 1999. She was terminated for 3 consecutive days of unexcused absence in October 2003. Terminated employees can apply for rehire after 30 days. If rehired, they return to work as new probationary employees. Dimas was rehired on that basis on February 6, 2004.
In early 2006, the Social Security Administration advised the Respondent that Dimas was using an invalid social security number. In September, Dimas provided the Respondent with new identification documents, including a matching Social Security number, falsely identifying her as Claudia Zamora.5
On Friday, September 8, 2006,
the Respondent discharged Dimas. On
Monday, September 11, it rehired the same person as “Claudia Zamora.”
During October, Dimas went
several times to the Respondent’s medical station, complaining of pain in her
left shoulder, arm, and wrist. Raul
Herrera, the Respondent’s newly hired safety director, oversaw the medical
station assisted by a plant aide. The
plant aide generally gave Dimas medication to relieve the pain and swelling,
and she returned to work.
On October 26, Dimas left work
early because of continuing pain in her left arm. On her own initiative, she went to a local
clinic where she was examined by a physician’s assistant known as “Dr. Mike.” Although Dr. Mike often examined employees
sent to him by the Respondent’s safety department, he was also Dimas’ personal
medical provider. Dr. Mike gave her a prescription
note, using the name “Claudia Zamora,” that recommended “light work or no work
[left] arm for one week.”
Dimas did not present the
medical note to the Respondent on October 27 due to the work stoppage. On October 30, Dimas presented the note to
her supervisor, who instructed Dimas to take it to the Respondent’s medical
station. Herrera gave Dimas a sling and
sent her back to work with instructions for her supervisor to assign her tasks
requiring use of her right arm only.
Herrera had only been hired in
early October. Knowing only of an
employee named Claudia Zamora, he did not know about her prior work history as
Dimas, which included a multiweek work restriction due to left shoulder pain
incurred on the job in February 2005. He
testified that, after he gave her the sling, she gave him the personal medical
note from the clinic visit to Dr. Mike that the safety department had not
scheduled. When doing so, Dimas said her
arm had been hurting for quite some time.
Herrera testified that this prompted him to investigate. He discovered that Dimas (
In the late afternoon, Herrera
took Dimas to Human Resources Manager King’s office, where King and Corporate
Human Resources Director Armando Campos were waiting. King testified that she informed Dimas that “I
didn’t have a job for her because she had a restriction, and that was a
restriction noted on a personal doctor’s note.”
When Dimas protested, King said, “Claudia, you’re a probationary
employee. You do not qualify for a
leave. If you had been more than—here
more than 90 days, I had options for you, but I don’t. I can’t accommodate you[r] restrictions and,
therefore, I don’t have a job for you.”8 King has admitted that Dimas did not verbally
request a leave of absence.
It is undisputed that
probationary employees are not entitled to take a leave of absence for any
reason, including medical. Both King and
Herrera testified about different procedures and policies for work- and nonwork-related
injuries and for handling personal doctors’ notes. King testified that work-related injuries
are handled by the safety department, under Herrera’s direction, and nonwork-related
injuries are handled by human resources, under King’s direction. King acknowledged that when new employees
began work at the plant, they often experienced pain in their arms and wrists
from repetitive motions.
King said that she has advised supervisors
not “to even look at” any personal doctor’s note presented to them by an
employee, but to refer that employee instead to human resources. Counsel for the General Counsel asked King on
cross-examination what she would do if an employee presented her a note from a
personal doctor seen during the weekend for a work-related injury. King said she would not consider the note,
but would send the employee to Herrera to take over. She further testified that, even if the
employee was probationary, Herrera might then send that employee to a company
doctor because the injury was alleged to be work related.
Herrera testified that the aches
and pains of all employees who come to the medical station for attention are
initially treated as work related pending further evaluation. “[I]f we are not a hundred percent certain
that it’s work related or non-work related, just to help the employee and their
health as we help them out at the time the injury happened. Once we figure out if the injury happened at
work, or it happened outside work, then we evaluate what route we’re going to
take.” Work-related injuries, including
those suffered by probationary employees, have been accommodated by work
restrictions or by moving the employee to a different work area. In fact, Herrera indicated that new employees
generally rotate through different areas of the plant in their department.
According to Herrera, “When it’s
not a work related injury and we have documentation stating that it’s not, then
we send it over to the Department of Human Resources to handle the situation.” However, at least one probationary employee,
Alisha Rutherford, received a restricted duty assignment for a nonwork-related
injury.
C.
The Discharge of Rodriguez
On October 31, Rodriguez was
working next to employee Dominique Johnson deboning chickens. Johnson was to make a cut; Rodriguez would do
a followup cut. Johnson was not making
her cut properly, so that Rodriguez could not further process the product. Rodriguez returned the chicken to Johnson to
re-work it by throwing it on the table in front of Johnson.
Johnson left the production line
to complain to King about the incident.
After interviewing Johnson, Rodriguez, and two other witnesses about
what had happened, Human Resources Manager King concluded that Rodriguez had thrown
the chicken. She suspended Rodriguez
until November 3 while King did a “job review” to determine the appropriate
discipline for throwing product. King
testified that since she assumed her position as plant human resources manager,
there was a zero tolerance policy for throwing anything, including product. However, she also testified that the most
important item in a job review is precedent, i.e., what the Respondent has done
in similar situations.
The record contains
documentation of the discharges of three employees for throwing product while
involved in horseplay. King admitted
that Rodriguez was not engaged in horseplay.
Three other employees were not discharged for workplace throwing
incidents. Employee Marcelino Bulux
received a verbal warning when he threw and hit a coworker with pieces of
ice. Employee Juan Garza received a
written warning when he picked up an employee and threw him on the production
line where chicken is transported.9 Employee Cynthia Garza received no discipline
for hitting another employee in the face with a chicken. Consistent with these examples, Rodriguez’
supervisor, Raymondo, testified that he may give a warning to an employee for
throwing items.
Although King testified about
the importance of precedent and suspended Rodriquez for 3 days pending an
investigation to determine how her conduct should be treated, she did not examine
previous cases of employees throwing things.
Rather, she relied on the representations of higher-management
officials. General Manager Charles Rigdon
told King that “throwing product has always been termination, period.” Corporate Human Resources Director Armando Campos
told King that, “if throwing product meant termination, then Rodriguez should
be terminated.” Based on this information,
King terminated Rodriguez on November 3.
Neither Ridgon nor
ii. the
judge’s decision
The
judge analyzed the unlawful discharge allegations under the Wright Line10 test for discriminatory
motivation. Under that test, “the General Counsel bears the burden of
proving by a preponderance of the evidence that animus against protected
conduct was a motivating factor in the adverse employment action. If the
General Counsel makes a showing of discriminatory motivation by proving protected
activity, the employer’s knowledge of that activity, and animus against
protected activity, then the burden of persuasion shifts to the employer to
prove that it would have taken the same action even in the absence of the protected
activity.” North Carolina License Plate Agency #18, 346 NLRB 293, 293 (2006),
enfd. mem. NLRB v.
The judge found that the General Counsel established
both that Dimas and Rodriguez engaged in protected concerted activity when they
served as employee spokespersons in complaining about working conditions to the
local newspaper,11 and that the Respondent was aware of this
activity when it discharged them. The
critical question for the judge was whether the General Counsel had shown that
animus against the employees’ protected concerted activity was a motivating
factor in the Respondent’s decision to discharge them. He rejected the General Counsel’s argument
that the timing of the discharges soon after the Respondent learned about the
newspaper article supported an inference of discriminatory motivation. The judge found that intervening events
precipitated by the employees themselves—Dimas’ presentation of the medical
note and Rodriguez’ chicken-throwing—dictated the timing of the Respondent’s actions.
For
Dimas, the judge found that other circumstantial evidence relied on by the General
Counsel failed to prove that her discharge was motivated by animus against her
for speaking to the press. The judge
rejected the argument that treating “
The
judge reached a different conclusion with respect to Rodriguez. He noted that King testified that precedent
was the most important factor in assessing Rodriguez’ conduct, but that King
had not independently reviewed prior personnel decisions regarding throwing product. He also found that the General Counsel proved
a “blatant” disparity between the Respondent’s treatment of Rodriguez and its
treatment of other employees who threw product or other items. Even without any independent violations of
the Act, the judge found that the evidence showing a failure to investigate and
disparate treatment warranted the inference of a motivation to discriminate
against Rodriguez for engaging in protected activity. In light of the evidence of disparate
treatment, the judge further found that the Respondent failed to meet its Wright Line rebuttal burden of showing
that it would have discharged Rodriguez even in the absence of her protected
activity.
iii.
analysis
We
affirm the judge’s findings that Rodriguez and Dimas engaged in protected
concerted activity12 and that the Respondent unlawfully discharged Rodriguez for this
activity soon after King learned about it.
However, we disagree with his rejection of the timing factor as circumstantial
evidence supporting the General Counsel’s initial Wright Line showing of discriminatory motivation for both discharges. We also conclude, contrary to the judge,
that the General Counsel has proved that the Respondent discharged Dimas in
retaliation for her role in the same protected activity, and that the asserted
reasons for the discharge were pretextual.13
A.
It
is well established that discriminatory motive may be demonstrated by circumstantial
evidence based on the record as a whole.14 “To support an inference of
unlawful motivation, the Board looks to such factors as inconsistencies between
the proffered reasons for the discipline and other actions of the employer,
disparate treatment of certain employees compared to other employees with
similar work records or offenses, deviations from past practice, and proximity
in time of the discipline to the union [or other protected concerted] activity.” Robert Orr/Sysco Food Services, 343
NLRB 1183, 1184 (2004), enfd. mem. 184 Fed. Appx. 476 (6th Cir. 2006). The Board frequently finds that the timing factor supports an
inference of animus and discriminatory motivation,15 particularly where an
employer simultaneously discharges multiple employees for unrelated reasons.16 That is the situation in the present case.
King
learned on October 30 that Dimas and Rodriguez had voiced complaints about
employee working conditions to the local press.
She terminated Dimas the same day, and she suspended Rodriguez, later to
discharge her, the very next day. The
discharge and suspension in less than 48 hours of the only two individuals identified
in the newspaper article is strong evidence of an unlawful motive. See, e.g., Dickens, Inc., 352 NLRB
No. 84, slip op. at 1 fn. 3 (2008) (concluding that timing of employee’s
discharge 2 days after his protected activity supported finding of unlawful
motivation); Sawyer of Napa, Inc.,
300 NLRB 131, 150 (1990) (inferring antiunion motivation from discharge of two
employees only 2 working days after learning of their union sympathies).
Contrary to the
judge, that inference of unlawful motivation is not negated merely because
actions by Rodriguez and Dimas occurring after their protected activity assertedly
precipitated their discharges. The Board
“does not find that the timing factor necessarily favors a respondent
whenever the discipline is imposed . . . immediately following the alleged
infraction. An employer might wait for a
pretextual opportunity to discipline an employee for engaging in protected activity.” Naomi
Knitting Plant, supra at 1282 fn. 18.
The Board evaluates all
the circumstances of a particular case to determine whether the timing of the
employer’s actions suggests that it seized an opportunity to mask its true motivation. This case-by-case approach explains why the
judge erroneously relied on Woodruff
& Sons, 265 NLRB 345 (1982), affd.
mem. Scurek v. NLRB, 717 F.2d 1480
(D.C. Cir. 1983), to support his timing analysis here.
In Woodruff & Sons, the employer
discharged alleged discriminatee Scurek immediately after he caused major
damage to his truck and a few days after he voiced pay complaints and filed an
assault charge against his supervisor.
The employer had repeatedly warned Scurek for reckless driving and for
necessitating numerous major repairs to his truck. There was no showing of disparate treatment
in discharging Scurek for this final incident in a sustained history of
misconduct. Further, the employer had
tolerated frequent pay complaints from other employees, and had actually
adjusted Scurek’s pay in response to his recent complaint. Under those circumstances, the Board
concluded that no inference of unlawful motivation should be drawn from the
timing of Scurek’s discharge relative to his pay complaint and assault charge a
few days earlier.17
By
contrast, this case presents none of the countervailing circumstances upon
which the Board relied in declining to infer discriminatory motivation from
timing in Woodruff & Sons, supra. There is no evidence that Rodriguez or Dimas
had any history of misconduct. Further,
there is strong evidence that the Respondent treated both more harshly than
similarly situated employees.18 And, unlike the employer
in Woodruff & Sons, the record
here establishes that the Respondent targeted, rather than tolerated, the only
two named employees who spoke to the press about employees’ concerns.
We
thus find it appropriate to rely on the timing factor, in addition to the other
evidentiary factors relied on by the judge, in affirming his conclusion that
the General Counsel met his initial Wright
Line burden with respect to Rodriguez, and that the Respondent failed to
show that it would have discharged her in the absence of protected activity.
B.
For
the reasons just stated, we also find that the timing of Dimas’ discharge
particularly supports an inference of unlawful motivation, in conjunction with
the unlawful discriminatory discharge of Rodriguez for engaging in the same
protected activity.19 We also disagree with the
judge’s analysis of the Respondent’s asserted reliance on Dimas’ probationary
status and her presentation of a personal medical note to justify her
discharge. As discussed below, the
Respondent did not consistently treat Dimas as a probationary employee, leading
us to conclude that the Respondent seized on her probationary status as a
pretext to discharge her. Even if it had
consistently treated Dimas as a probationary employee, we find that the
Respondent’s handling of her medical situation constituted disparate treatment.
The
Respondent’s defense requires us to accept the multiple propositions that Dimas:
(1) was properly treated as a probationary employee with a nonwork-related
injury; (2) could not be accommodated for her injury like other probationary
employees because she had visited a physician’s assistant on her own; and (3)
could not be retained because the physician assistant’s note implicitly asked
for a leave of absence. Any one of
these propositions is questionable.
Collectively, they cannot stand.
It
is not for the Board to question the per se legitimacy of the Respondent’s discharge
and immediate rehiring of Dimas as a new probationary employee in September
2006. It is within our purview, however,
to consider that the Respondent did not treat her as an ordinary newly hired or
rehired employee. First, it rehired
Dimas as “
By
contrast, when Dimas later presented Dr. Mike’s note prescribing an injury
accommodation, King insisted that Dimas had to be treated as a newly hired
probationary employee who could not be accommodated or granted a leave of absence
for an obvious work-related injury. King
took this strict view of Dimas’ probationary status only hours after learning
of Dimas’ protected activity, including her specific complaint about the Respondent’s
failure to honor doctors’ notes prescribing work restrictions for job-related
injuries. The Respondent’s prior
reliance on Dimas’ actual work history when treating “
Nor
are we impressed by the Respondent’s argument that its treatment of Dimas
resulted from the fact that she went to Dr. Mike on her own and presented a
personal physician’s note. Herrera
testified that this action essentially preempted him from sending her for a
medical evaluation to determine if her injury was work related. King, however, testified that an employee,
even if probationary, who did what Dimas did would be referred to Herrera, who
might then send the employee to the company doctor for an evaluation. In any event, King knew that Dimas’ injury
was related to her work with the Respondent, and there was nothing to the
contrary in Dr. Mike’s note. Thus, even
if the Respondent could legitimately disregard Dimas’ personal medical note,
there appears to be no legitimate reason why the Respondent was precluded from
accommodating Dimas’ work-related injury, as it did with other employees.
This
is so even if the Respondent had consistently treated Dimas as a probationary
employee. Dimas had been to the medical
station with complaints about work-related pain since she was hired as
Finally,
even if the Respondent could reasonably have regarded Dimas as a probationary
employee with a nonwork-related injury, we disagree with the judge that the Respondent
could reasonably have interpreted Dr. Mike’s note as requesting a leave of
absence. The note said nothing
whatsoever about a leave of absence, and Dimas never asked for one. Like many similar notes in the record, it
prescribed restricted work duty.
Moreover, King never asked Dimas whether she was requesting a leave of
absence, or whether she was willing to return to work without any restriction
and deal with her pain, just as Dimas had done after other recent visits to the
medical station.20
Based
on the foregoing, we find that the Respondent’s reliance on Dimas’ limited work
history as “
Amended
Remedy
Having
found that the Respondent has engaged in certain unfair labor practices, we
shall order it to cease and desist and to take certain affirmative actions designed
to effectuate the policies of the Act.
Specifically, we adopt the judge’s recommended backpay and reinstatement
remedy for the unlawful discharge of employee Luz Rodriguez. In addition, having found that the Respondent also unlawfully discharged
employee Evodia Dimas a.k.a. Claudia Zamora, we shall include in our remedial
order conditional provisions for reinstatement and backpay.
Contrary
to the judge, and consistent with Board practice, we shall order the Respondent Employer to offer Dimas reinstatement
subject to the condition that she presents,
within a reasonable time, INS form I–9 and the appropriate supporting documents
proving legal immigrant status. See A.P.R.A.
Fuel Oil Buyers Group, Inc., 320 NLRB 408, 415–417 (1995), affd. 134 F.3d
50 (2d Cir. 1997).
In Hoffman Plastic Compounds, Inc. v. NLRB,
535 U.S. 137 (2002), the Supreme Court held that the Immigration Reform and
Control Act of 1986 (IRCA) precluded the Board from awarding backpay to any discriminatee
who is not “lawfully entitled to be present and employed in the
Any
backpay owed to Dimas shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed
in New Horizons for the Retarded, 283
NLRB 1173 (1987).21 In addition, the Respondent
shall be ordered to remove from its files and records any and all references to
the unlawful terminations of Dimas and Rodriguez, and to notify them in writing
that this has been done.
ORDER
The
Respondent, Case Farms of North Carolina, Inc.,
1. Cease and desist from
(a) Discharging or otherwise discriminating against employees because they engage in protected concerted activities, or to discourage employees from engaging in such activities.
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Luz Rodriguez full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights and privileges previously enjoyed.
(b) Within 14 days from the date of this Order, offer Evodia Dimas a.k.a. Claudia Zamora full reinstatement to her former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights and privileges previously enjoyed, provided that she completes, within a reasonable time, INS form I-9, including the presentation of the appropriate documents, in order to allow the Respondent to meet its obligations under the Immigration Reform and Control Act of 1986.
(c) Make Rodriguez and Dimas whole for any loss of earnings and other benefits suffered as a result of their unlawful discharges, with interest, in the manner set forth in the amended remedy section of this decision.
(d) Within 14 days from the date of this Order, remove from its files any and all references to the unlawful discharges of Rodriguez and Dimas/Zamora and, within 3 days thereafter, notify them in writing that this has been done, and that the unlawful discharges will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, Social Security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in
(g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
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 discharge or otherwise discriminate against you because you engage in protected concerted activities, or to discourage you from engaging in such activities.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will, within 14 days from the date of the Board’s Order, offer Luz Rodriguez full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights and privileges previously enjoyed.
We will, within 14 days from the date of the Board’s Order, make a conditional offer of reinstatement to offer Evodia Dimas a.k.a Claudia Zamora, offering her full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed, provided that she completes, within a reasonable time, INS form I-9, including the presentation of the appropriate documents, in order to allow us to meet our obligations under the Immigration Reform and Control Act of 1986.
We will make Rodriguez and Dimas whole for any loss of earnings and other benefits suffered as a result of their unlawful discharges, with interest.
We will, within 14 days from the date of the Board’s Order, remove from our files any and all references to the unlawful discharge of Rodriguez and Dimas and, we will, within 3 days thereafter, notify them in writing that this has been done, and that the unlawful discharges will not be used against them in any way.
Case Farms of North Carolina, Inc.
Rossetta Lane, Esq., for the General Counsel.
Charles
Roberts III, Esq. (Constangy, Brooks & Smith, LLC), of
Mr. Francisco Risso, for the Charging Party.
DECISION
Statement of the Case
John H. West, Administrative Law Judge. This case was tried in
On the entire
record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel and the Respondent on September
17, 2007,[2] I make
the following
Findings of Fact
i. jurisdiction
The Respondent,
a
ii. alleged unfair labor practices
Facts
On October 27, a
number of Respondent’s employees engaged in a work stoppage. Before October 27,
the employees were provided with an unlimited number of latex gloves daily by
the Employer. The employees had been placing the gloves in trash containers
when they went on break or to the restroom, and they were given a new pair of
gloves, at no charge to them, when the returned to the work area. Before
October 27, the employees had complained that the quality of the gloves had
fallen off. Also, customers complained that they were finding pieces of the
latex gloves in the product and they advised Respondent that they would not
continue to purchase Respondent’s product unless the problem was remedied. Respondent
purchased better latex gloves which cost more and Respondent decided to only
provide three pairs of these gloves to the employees daily. If an employee required
more than three pairs of gloves on a given day, the employee had to pay 50
cents to Respondent for each additional pair of gloves. The employees received
notification of the change in policy on October 27.
Members of
management spoke to the employees on October 27 telling them to go back to work
or leave the plant. The employees did neither. The message was repeated during
the morning and eventually the employees were advised that the police were
going to be summoned. Subsequently, the police arrived and the employees were
escorted off Respondent’s property.
Miguel Cua, who
is a human resource supervisor, testified that on October 27 there was a work
stoppage beginning at 8:15 a.m., and he and Armando Campos, Respondent’s human resources
director, went down to the production floor to find out what was going on; that
the employees complained about the change in the glove policy; that the
employees were told that the new glove policy was not going to be changed; that
management decided to give the employees time to cool off; that later the
employees were asked again to go back to work but the employees said that they
were not going back to work until the Company changed the glove policy back to
the old policy; that the employees were informed that the policy was not going
to be changed back and they had 10 minutes to go back to work; that a second
warning was given to the employees who were told to go back to work or leave;
that the employees refused; that after the third attempt to get the employees to
work or leave, management told the employees that if they did not work or leave
they were trespassing and management would call the police; that the police had
the employees leave the Respondent’s property; that by about 11:30 a.m. more
than 250 employees had left the plant; that during the 3-hour period he did not
say anything about calling Immigration; and that he addressed the employees as
a group.
On
cross-examination, Cua testified that during the work stoppage management told
the employees “don’t yell, don’t yell, be calm” (Tr. 478); that there was no
violence when the police came; and that the employees left when they were told
to by the police.
When called by counsel
for the General Counsel, Victoria Soto King, Respondent’s human resource director,
testified that Respondent had been having a problem with the latex gloves it
used for some time; that eventually a vendor of a better quality latex glove
was located; that the better latex gloves cost the Respondent more and it was
decided to give Respondent’s employees three pairs per day and after that the
employees would have to pay for the additional pairs of gloves they used; that
she thought the cost to employees for additional gloves was 45 cents a pair;
that employees have to purchase the files they use to sharpen their knives;
that on October 27, the employees engaged in a walkout because they were not
going to get as many free gloves as they used to; that she arrived at the plant
at about 11:30 a.m. on October 27; that the police arrived at the plant and
removed more than 250 employees on October 27; and that later that day when the
employees returned to the plant to pick up their paychecks she told the employees
that she did not understand why they had
to walk out.
A newspaper
article (GC Exh. 2) (R. Exh. 13 is the computerized copy of the newspaper
article) was published on Sunday, October 29, about the walkout and two
employees who spoke to representatives of the press about the reasons for the
walkout, viz. Zamora and Rodriguez, were named in the published article. As
here pertinent, the newspaper article reads as follows:
More than 100 workers at Case Farms walked off the job Friday morning after what they call a months-long attempt at correcting problems inside the factory.
Company officials say the incident Friday was caused by new gloves introduced into the work area. . . . .
Workers say the gloves aren’t their only problem.
. . . .
“We’ve been talking for several months about problems at the plant, but the company hasn’t responded to our needs,” says spokesperson Luz Rodriguez, through interpreter Francisco Russo, director of North Carolina Worker’s Center.
Thursday, the company announced that each worker would get three pair of gloves that should last them the entire day, she says.
The workers were told that they would be charged 75 cents for each additional pair, she says.
She says workers normally use six or seven pairs a day because the gloves break.
There was no limit on gloves before Friday, Rodriguez says.
. . . .
Gloves aren’t the only reason workers say they decided to stage a strike.
Pregnant women used to be able to take 13 weeks off when they had their babies but the company now expects new mothers to come back in a month, Rodriguez says.
“It had to do with a lot of things,’ she says. ‘We decided to say, No more.’”
Claudia Patricia-Zamora says the workers at Case Farms are routinely told to ignore notes from doctors about work restrictions when they’ve been injured on the job.
. . . .
Rodriguez
testified that she worked at Respondent from October 9 until the 31; that she
cut and deboned chicken legs using a knife or scissors in area 1145; that on October
27 when she arrived at work at 8 a.m. she was given three pairs of gloves for
the day and if she needed more, she would have to pay for them; that in the
past she was able to get as many pairs of gloves as she needed during the day;
that she then went to the ladies locker room where the ladies were talking
about a strike or work stoppage; that she and the other ladies went to the work
area; that all of the workers were standing; that she told the workers that if
they stick together maybe the Company would reduce the price a little bit of
the gloves; that Supervisor “Chepino” (Jose Hernandez) asked her why she was
screaming at the people, yelling at the people, and she told him that she was
not yelling but rather she was simply defending the employees’ rights as
workers; that the employees in area 1145 decided to go to area 1110; that when
she was in area 1110 Campos came and spoke to the employees; that Campos asked
her why she was yelling or screaming, she told Campos she was not screaming or
yelling she was just simply defending the employees’ rights and defending her
coworkers because it was not just what the Company was doing to them, it was
not fair; that Campos then told her that what she was doing was not right, if
she had a problem, she should go to the office and talk to him, and it was her
fault that the people had stopped working in area 1110; that then-Supervisor Miguel (Rodriguez
did not know his last name) came and told the employees to leave the Company
and the police were coming; that employees told Miguel that they were not
afraid of the police and Miguel said, “Well, if you’re not afraid of the
police, then don’t make us call—have to call Immigration” (Tr. 157); that then
the police came and the employees went to the cafeteria; that then the police
made the employees leave Respondent’s property; that the employees went to a
local church and she was chosen to speak to the press; that she told the press
that it was not fair what the Company was doing because the Company was charging
the employees for everything; that she returned to the plant later that day to
pick up her paycheck; that King told the employees, “Aren’t you—aren’t you
ashamed to come pick up your check after you—after what you have done? Why did
you make such a scandal for a pair of gloves? Why did you force us to call the
police?” (Tr. 160 and 161); that an employee said that they had only come for
their paycheck and they did not want to hear what King had to say; that King
then said, “[W]ell, be quiet, and if you don’t want to work here, leave. You
are a dog, or it could be a bitch. I don’t—it’s the same word in Spanish” (Tr.
161); and that then King told the employees to be quiet and leave and “not to
force her to call the police or immigration because I will send you back to
your country” (
On
cross-examination, Rodriguez testified that on October 27 at about 8 a.m. there
were about 300 employees who were not working at that time; that 3 hours later,
or about 11 a.m., the employees were finally made to leave the plant; that only
once did Campos and Cua ask the employees to either leave the facility or go
back to work; and that at some point Miguel or some other supervisor told the
employees that if they did not leave the plant the police were going to be
called.
King testified
that about 90 percent of Respondent’s employees at the involved plant are
Hispanic, with 89 percent of Guatemalan descent; that in 2006 the employees
began complaining about the latex gloves, indicating that they were thinner
than they had been using and that the finger tips were no longer rough which
made it more difficult to hold the product; that a customer complained that it
was finding pieces of the yellow latex gloves on the product and it indicated
that if Respondent wanted the customer to buy the product, Respondent would
have to make sure that the extraneous material was not on the product; that it
was decided to use blue latex gloves; that the employees indicated that the new
gloves were of the same thickness of the gloves they used before they became
thinner; that it was decided that three pairs of the new gloves would be
supplied to employees each day and if the employees needed additional gloves
they would have to pay 50 cents for each pair; that on Thursday, October 26 she
posted a notice to employees advising them that if they needed more than three
pairs of gloves a day, it would cost them 50 cents a pair[3];
that when she arrived at the plant on October 27 at about 11 a.m. she saw the
police cars around the plant and Campos told her what was going on; that on the
afternoon of October 27 when the employees returned to the plant to pick up
their paycheck, she asked them “why did you leave, why did you feel that you
had to stop like that” (Tr. 336); that some employees told her that they were
not there to talk about issues, they were there just to pick up their paycheck;
that she then told the employees present “[w]hen you come back on Monday, you’re
going to get your three pairs of better yellow gloves you wanted. If you want
to work, come to work. But if you don’t want to work, don’t even bother coming”
(Tr. 337); that she did not say to the employees don’t make me call Immigration
or I’m going to call Immigration, and she did not call the employees dogs or
bitches in Spanish; and that she did not ask employees “are you ashamed to pick
up your paychecks.” (Tr. 396.)
On October 30,
Respondent’s employee known at that time as
When called as a
witness by the General Counsel, King testified that Ken Wilson, in public
relations at Respondent, e-mailed her a copy of the newspaper article about the
work stoppage in which Dimas, referred to in the article as Zamora, and
Rodriguez were quoted (R. Exh. 13); that Raul Herrera, who began working for
Respondent on October 9, 2006, is Respondent’s safety manager and is
responsible for Respondent’s medical station and workers’ compensation, met
with her about Zamora’s complaint regarding her left arm; that Dimas a/k/a
Zamora had worked for Respondent since 1999; that on Friday, September 9, Dimas
brought to Respondent identification documentation as Zamora; that on the
following Monday Dimas began working as Zamora; that when Dimas was hired as
Zamora, she was given new employee orientation, a different employee number, a
new employee seniority date, her job and her supervisor remained the same but
Dimas’ pay was reduced to that of a starting employee; that when a new employee
begins working at Respondent they often experience pain in their arms and their
wrists from the repetitive motion of the work; that Herrera will work with the
employees for a couple of weeks to alleviate the pain until they get better;
that sometimes Herrera has to move the employee to a different job where they
are not using that particular part of their body for a couple of weeks; and
that Herrera does this for all employees, including new employees.
When called as a
witness by the General Counsel, Herrera testified that when an employee comes
to the medical station complaining about an ache or pain the situation is
evaluated; that everything is treated as work related initially just in case;
that new employees especially experience aches and pains; that if a new
employee complains about an ache or pain, they can, after evaluation, be used
in different areas of the plant within their department for a while so that
they are not aggravating the injury; that in October Zamora, who worked on the
deboning line, came to the medical station and told him that she was experiencing
pain in her left shoulder, arm, and wrist; that on October 30, Zamora presented
him with a note from the Table Ridge Family Medicine clinic, which is one of
the clinics which Respondent refers its employees to, calling for light duty or
no work for left arm for 1 week (GC Exh. 3, a Table Rock Family Medicine note,
indicates “Light work or no work . . . [see left] arm for one week”); that in
this instance Respondent had not referred Zamora to the clinic; that Zamora had
been in the plant aid office several times complaining about this pain in her
shoulder, arm, and wrist, and most of the time Respondent would give her some
medication that would help relieve the swelling and pain; that on October 30,
when Zamora came to him with the medical note he told her that he would help
her and he gave her a sling for her arm; that at the time of her evaluation he
told Supervisor Jose Hernandez to give Zamora a job where she did not have to
use her left arm; that 95 percent of the time he has employees who come to him
with an injury or pain of some sort write a statement about it; that he could
only recall one other time when he had an employee, Antonio Jackson, draft a
statement regarding how he was injured; that he did not tell Zamora
individually when she came to the medical station that there are better ways to
take care of a problem than a work stoppage; that on October 27, as part of the
management team speaking to employees engaged in the work stoppage, he did tell
all of the assembled employees together that there is a better way to take care
of problems than a work stoppage; that his office did not schedule Zamora’s
appointment at the clinic; that at the time he did not know Zamora under any
other name; and that when he determined that the injury was not related to workers’
compensation he sent Zamora to human resources.
In her
examination of Herrera, counsel for the General Counsel introduced General Counsel’s
Exhibits 4 through 19, which show that Respondent gave light duty to a number
of employees who suffered an injury, pains, aches, or cysts. Some of these
employees who were given light duty had not yet completed their probationary
(90 days) period and some of these were given light duty after
Dimas testified
that she began working at Respondent in January 1999; that in September 2006
when she changed her identification from Dimas to Zamora she did not miss any
work in that she changed her identity on Friday and on Monday she was called
Zamora; that when she became Zamora her job and supervisor, Pedro Shank, did
not change but she was paid less for doing the same work; that she worked on a
deboning line, cutting chicken legs with a knife or scissors; that when she
works with scissors if the chicken leg was not cut properly by the person on
the line ahead of her using the knife, she returns the chicken to the person
who originally had the responsibility of making the necessary cut with the
knife; that she uses her right hand for the knife and scissors and she wears a
metal glove on her left hand; that on October 26, she had to leave work early
because her left arm hurt her a lot; that she went to see “Doctor Mike,” who is
a physicians assistant at Table Ridge Family Medicine clinic; that the
physicians assistant asked her if Respondent had sent her and she told him no;
that prior to seeing the physicians assistant she told the nurses aide in the
plant that she was going to the doctor because her arm hurt a lot; that the
nurses aide told her that she would have to speak with King and she did speak
with King but she could not remember exactly when; that on October 27, she
participated in the work stoppage over Respondent’s new policy regarding work
gloves; that she was also upset about Respondent’s policies regarding absences
and doctor notes; that she overheard Rodriguez, who was a new employee, tell
her coworkers not to be afraid because management would not do anything to
them; that Supervisor Hernandez and Campos then told Rodriguez to be quiet and
they asked her why she was screaming so much ; that the employees were told to
go to the cafeteria, that the police would be summoned, and the police did come
to the plant; that many of Respondent’s employees left Respondent’s property
and met at a church; that newspaper people came to the church and she spoke
with them through an interpreter; that later in the day on October 27 she and
other employees went back to Respondent’s plant to get their belongings and
their paychecks; that while they were at Respondent’s plant, King told the
employees that if they wanted to go back to work on Monday the work was there
but the new policy regarding the gloves would remain the same; that on October
30, she told Supervisor Hernandez that she had to go to the nurses station;
that at the nurses station she spoke with Nurse Morgan and Herrera; that
Herrera told her that he had spoken with King, they decided to take her case,
they were willing to help her, and he had a present for her, namely a sling;
that she gave Herrera the note she had from the Table Ridge Family Medicine
clinic; that she told Herrera that Dimas went to the clinic and not Zamora;
that Herrera then said that he did not like it when people played with him;
that Herrera put her arm in the sling, and he told her not to take it off for
any reason and that the doctor’s note would be respected; that Herrera told
Hernandez to put Zamora on a job where she would be using only one hand; that
she picked up chicken legs which had fallen between the lines and she placed
them in a box; that she worked for 2 hours and then went on a break; that she
worked for 30 minutes more picking up chicken legs off the floor when Herrera
told her to go to his office; that Herrera told her that he was new at Respondent
and needed her to help him so he could help her; that he asked her to draft a
statement indicating when she started work and when her arm started hurting
her; that while she was writing the statement (GC Exh. 22),[4]
Herrera said that the employees committed a grave error when they stopped work
on October 26; that she told Herrera that she realized that but she did not
like the way King treated her; that she spoke with Herrera for about 2 hours;
that she told Herrera that ever since King and Campos came to Respondent
changes were made, they were not made in favor of the employees but rather they
were made in favor of the Company; that she went back to work and about 5:30 or
6 p.m. Hernandez told her to go to King’s office; that it was just her and King
in the office but Campos came in at one point; that King told her that she had
discussed the matter with Herrera and she would have to let her go because she
could not work with just one hand and they did not have work for her with just
one hand; that she told King that she was willing to do any other work even if
it did hurt her; that King told her that she could not do anything for her;
that she asked for a termination slip and King said she was not going to give
it to her; that King called and told Herrera to accompany Dimas to get her
belongings; that during her employment with Respondent she once took a leave of
absence for 4 months; and that when King discharged her King did not tell her
that she could reapply to work at Respondent’s plant in 30 days.
On
cross-examination, Dimas testified that the birth date of Zamora was different
than the one she originally gave when she originally went to work for
Respondent in 1999 (R. Exh. 1)[5];
that the social security number she gave to the Respondent in 1999 was given to
her by a friend; that she was not authorized to work in the United States in
1999; that she was never terminated by the Respondent before October 2006; that
in September 2006 King told her that she would have to be terminated as Dimas
and rehired as new employee Zamora; that she signed an employment application
as Zamora; that her pay was reduced; that she bought the papers so that she
could work as Zamora; that on October 27, Hernandez told employees to go back
to work about three times; and that on October 30, even though she was not
asking for a leave of absence, King told her that she could not give her a
leave of absence because she was a new employee.
On redirect,
Dimas testified that she gave her Zamora papers to Campos and not King; that
while she signed the Zamora application (GC Exh. 23), she did not fill it out;
that King filled out the Zamora application and King asked her to sign it; that
while she worked as Dimas at Respondent, her job was changed for 1 week to
accommodate a thumb she cut at home; and that she regretted changing her name
to Zamora “because it didn’t do me any good.” (Tr. 148.)
King testified
that the probationary period is 90 days; that probationary employees do not
receive any benefits and they are not eligible for any kind of medical or
personal leave; that since 2004 when someone applies for a job Respondent has
telephoned the SSA to check that there is a match with the social security
number given, the name, and the birth date; that periodically, Respondent gets
letters from SSA indicating that there are certain mismatches; that she prints
two copies of the letter, gives one to the employee involved, and has the employee
sign the other copy to show that the employee was given the letter; that the
SSA letter indicates that the employer cannot assume that the individual in
question is illegal and the employer cannot take adverse action against the
involved employee; that she gave such a letter to Dimas and Dimas subsequently
gave new documentation to Campos[6];
that she did check the social security number to make sure that it belong to
somebody named Zamora; that Dimas was terminated on September 8, 2006 (R. Exh.
12); that Dimas, under the name Zamora, was hired on September 11, 2006 (R. Exhs.
14, 15, and 16); that late in the afternoon of October 30, 2006, Herrera told
her “[t]hat Evodia had a personal doctor’s note that I needed to deal with” (Tr.
352); that for anything work related the nurses station would schedule a doctor’s
appointment; that she has advised supervisors that any other doctor’s note
should be referred to human resources; that the Respondent does “not contemplate
personal doctor’s note restrictions [regarding light duty or proposed
restricted duty] at all, none” (Tr. 353); that Respondent allows light duty or
restricted duty in work-related, workers’ compensation cases; that if employees
who are not probationary come to her with a note proposing a personal restriction
that employee can take medical leave or personal leave; that it is best that
employees who have not finished their probationary period and who have a
proposed personal restriction, that they just quit and come back when they are
better; that anyone can reapply after 30 days; that she understood that Zamora’s
appointment was not one that either Herrera or his office scheduled; that she
called Zamora to her office and told her that Respondent did not have a job for
her because she had a restriction in her personal doctor’s note; that Campos
and Herrera were in her office at the time; that she told Zamora that if she
had been there more than 90 days she would have options but Respondent could
not accommodate her restrictions, and, therefore, Respondent did not have a job
for her; that on Monday morning, October 30, she did see Zamora’s name in the
newspaper article emailed to her by Wilson (R. Exh. 13), but that had nothing
to do with Zamora’s termination; that she probably printed a copy of the e-mail
but she did not have a copy of the actual newspaper itself; and that she has
had other employees since she has been at Respondent within their probationary
period who had personal restrictions that she has been unable to accommodate.
King sponsored Respondent’s Exhibits 28 [A probationary employee, Carlos
Algarin, could not work until his next medical evaluation and he was not eligible
for leave of absence (LOA).]; 29 (A probationary employee, Marie Vincente, could
not work in a cold environment and she was not eligible for LOA), and 30 (A
probationary employee, Ronald Romero, could not work until his next medical
evaluation and he was not eligible for LOA).
On
cross-examination, King testified that she was employed with Respondent when Algarin
requested a leave of absence; that Algarin was requesting to be out of work completely,
the doctor told Algarin that he could not work until his next medical
evaluation, and she did not know how long it would be until Algarin’s next
medical evaluation; and that Romero was asking to be out of work until his further
medical evaluation and he was not asking for any type of special accommodations;
that Vincente was requesting a restriction not to work in a cold area and the
doctor did not give a particular time frame that she was not supposed to work
in a cold environment; that as memorialized by General Counsel’s Exhibit 25,
Dimas a/k/a Zamora received a probationary increase in pay back up to $8
an hour after she had been working at
Respondent for less than a month as Zamora; that Dimas a/k/a Zamora never requested
a leave of absence; that she did not review Dimas’ personnel file before
testifying at the trial herein; that there are documents in Dimas’ personnel
file which indicate that she received leave of absences throughout her
employment; that Dimas is not an argumentative employee and she did anything
she, King, asked her to do; and that when Dimas a/k/a Zamora brought the medical
note on October 30 she would have been eligible for a leave of absence if she
had not been a probationary employee.
When called by
the Respondent, Herrera testified that he was called to the nurses station
about 8:15 a.m. on October 30; that at the time Morgan was in charge of the
nurses station; that Morgan told him that Respondent was treating Zamora for
what is called evaluation; that he knew about it the week before; that he asked
Zamora what was wrong; that he told Zamora that he had something to help her
out and he gave her a sling to immobilize her arm; that he told Zamora that she
was going to have to wear the sling throughout the day; that he called Hernandez
and told him that he needed to find a job where Zamora could use one arm; that
after he gave Zamora the sling and told her that she would be working under
restrictions, she told him that here arm had been hurting for some time and she
gave him a medical note; that neither he nor the nurse scheduled that medical
appointment; that for workers’ compensation injuries either he or the nurse
schedules the doctor’s appointment; that he checked how long Zamora had worked
for Respondent and discovered that she had not been there very long; that he
had Zamora come to his office and he asked her to draft a statement regarding
what caused the injury, how, when, and why it happened; that Zamora gave him
her statement (GC Exh. 22 translated at Tr. 123–124); that he sent Zamora back
to work and he then reviewed her statement; that the statement showed differences
in time, it showed differences in when her injury happened, when she reported
it, and how long she had been injured (The statement reads in part as follows: “The
pain began when I was about eight (8) months doing the second cut. . . . I started working on the 6th of February 2003.
. . .”); that when he looked at Zamora’s hire date again he realized that there
was an issue and he brought the note back to human resources so they could
evaluate it; that in his conversations with Zamora that day he did not say (1)
anything about the walk out that had
occurred on the previous Friday; (2) employees had made a grave error; (3) we’ve
taken your case per Victoria; and (4) I
have a gift for you; that Zamora did not say it is not Christmas; that he was
present when Zamora was terminated; that King told Zamora that she was not
eligible for LOA and the Respondent did not accommodate any personal
restrictions; that he walked Zamora out of the plant; that as he escorted her
out, she threw the sling in his face, said that he cheated her out of her job,
and called him “bentetol” which means stupid or something like that; that
regarding some injuries he did not know whether they were work related or nonwork
related and he works with the employee until it is determined whether the
injury is work related or not; that with respect to General Counsel’s Exhibit
4, (a) Donald Gene Allen had nonwork-related injury and he received 5 days on
job restriction; (b) Antonio Rico Jackson had a nonwork-related injury and was
given 8 days job restriction; (c) Dorothy Gladden had a nonwork-related injury
and had other recordable cases; and (d) Janice Elaine Jordan had a nonwork-related
injury and was given 8 days on job restriction; that Allen, Jackson, Gladden,
and Jordan were all provided restricted duty while he was setting up appointments
for Respondent to determine whether their injuries were work related or not;
that Zamora was different because she gave him a personal note and
Because the red flag again. If we—If I - if I don’t have any red flags on a—on an injury, once again we treat all
injuries as they were work-related and then we go from there. With Claudia
Zamora, there was a red flag. There was a date of hire, then an injury date,
and that’s what caused for me to investigate. [Tr. 504.]
On
cross-examination, Herrera testified that Morgan is not a registered or
licensed practical nurse but rather she is a CNA (apparently meaning a
certified nursing assistant); that Zamora came to the nurse’s station with a
pain in her left shoulder, arm, wrist, and hand; that after she gave him a
written statement he escorted Zamora to King’s office; that he told King what
was going on; that King did not tell him at that time that Zamora had worked
since 1999 at the plant as Dimas; that he was on the plant floor on October 27
during the work stoppage; that he was part of the group of managers who were trying
to calm things down; that he and the other managers were telling employees “don’t
yell, don’t yell, calm down” (Tr. 510); that after several attempts to get the
employees to go back to work, the employees were told that the authorities were
going to be called; and that he never sent Zamora to the doctor to be evaluated
for her arm because she never gave him the opportunity to because Zamora went
to the doctor first.
Respondent
experienced mechanical problems on line 16 in the deboning department on
October 31, 2006. The employees on that line, who were not experienced employees,
were moved to line 12 in the deboning department. Among them were Rodriguez,
who had been hired by Respondent just a couple of weeks before that, and
employee Dominique Johnson, who had been hired in March 2006. As here
pertinent, Rodriguez and Johnson were positioned on the line so that Johnson
first made a cut with a knife and then Rodriguez, using only scissors, engaged
in a followup procedure. Johnson was not making the cut properly which meant
that Rodriguez could not further process the product moving to her from
Johnson. Indeed, Johnson’s failure to do her job properly affected not only
Rodriguez ability to perform her job but it affected at least one other employee
beyond Rodriguez on the line, namely Pedro Luis Ronda, who also worked with
scissors. Rodriguez returned the product to Johnson to rework it. Rodriguez did
this on more than one occasion. Johnson and Rodriguez then exchanged words and
Johnson, without permission from a supervisor, walked away from the line. Human
resources then became involved in this matter. Johnson, Rodriguez, and Rhonda
were interviewed, and they gave written statements to human resources. Respondent’s
Exhibits 20, 24, and 22, respectively. Supervisor Daniel Raymundo also gave a
written statement to human resources with respect to what he allegedly
witnessed. (R. Exh. 21.) Rodriguez, who testified that she cannot read in English,
signed a statement written in English by King. (GC Exh. 25.) The statement
indicates that Rodriguez threw product. Rodriguez was terminated. Respondent
takes the position that Rodriguez was terminated for throwing product when she
gave Johnson back the product to rework or cut properly. According to Respondent,
throwing product warrants termination.
Johnson did not
testify at the trial herein.
When called by counsel
for the General Counsel, King testified that Johnson was discharged in 2007 for
absences; that Johnson was a tall and heavy set woman; that Johnson was not a
Hispanic employee and she did not speak Spanish; that Johnson had to be coached
a lot because the other employees thought she was rude; that Johnson did not
get along with the other employees; that Johnson came across as a bully, she intimidated
other workers, and was disrespectful toward supervisors; that Johnson was often
late for work and sometimes she forgot to clock in; that Johnson refused to do
what a United States Department of Agriculture inspector directed her to do;
that on October 31, Johnson came to her office; that prior to Johnson coming to
her office neither Supervisor Raymundo nor Supervisor Hernandez told her that
there was a problem on the involved line; that Johnson told her that Rodriguez,
who was making a cut following the cut Johnson was making, told Johnson that
she did not know how to cut the chicken right; that Johnson gave a statement to
her and in it Johnson indicated that she told Rodriguez that nobody was going
to tell her that she could not cut the chicken right; that Johnson told her
that the other employee had cussed at her in English; that Johnson, who was
using a knife at the time, told her that she told Rodriguez “to come and fuck
her up,” (Tr. 46); that when Johnson left the line she did not tell her supervisor
that she was leaving; that employees do not need to get permission to leave a
line to see her if they feel threatened or intimidated even if a supervisor is
present on the line; that Rodriguez was a new employee and she was learning the
job a the time of her discharge; that she did not recall any employee being issued
a warning for walking off the line without permission during the time she
worked at the involved plant; and that an employee can be disciplined for using
profane language in the plant.
Rodriguez
testified that when she came to work on Tuesday, October 31, her line was not
running and her supervisor told her that she was being sent to another line;
that the supervisor on the line she was sent to was Raymundo; that her task was
to remove the fat from the chicken with scissors and remove the bone; that to
her right there was a lady who was new to the job and she could not do the
work; that Johnson was to the right of the new employee; that the new employee
next to her was moved by Raymundo because she could not do the work; that she
took the new employee’s place next to Johnson and there was a boy on her other
side[7];
that Johnson, who is a tall women and was using a knife, was not doing her job
correctly; that Supervisor Raymundo was temporarily taking an employee’s place
on the line; that she told Raymundo to tell Johnson to do her job right because
she could not work if Johnson was not doing her job right; that Raymundo did
not pay any attention to her the first time; that she told Raymundo the second
time to tell Johnson to do her work correctly because she could not do her job
if Johnson did not do her work correctly; that then she saw Raymundo speaking
to Johnson but she could not hear what was said since she was wearing earplugs;
that she pushed the chicken which was piling up in front of her back to Johnson;
that then Johnson threw a piece of chicken at her which hit her stomach; that
Johnson looked at her with an ugly face, said some ugly things, and wanted to
hit her with the knife she was holding; that Johnson raised the knife; that she
ran behind the boy next to her; that Raymundo called someone on the radio and
then told Johnson to go with him; that about 5 minutes later Hernandez told her
to leave the line and stay in a room with a supervisor; that she told the supervisor
what had happened and she was sent back to work; that later she was called to
go off the line and she went to an office with Cua; that she was then sent to
take her break; that she then went to King’s office; that King told her, “[Y]ou
are new and you already have problems with the employers—employees,” (Tr. 171);
that she explained to King what had happened and King gave her a yellow sheet
of paper to write out a statement; that she wrote out what happened and she
signed it (GC Exh. 24)[8];
that King then told her that everything that she “wrote on that paper was pure
lie” (Tr. 173); that she told King that everything that she wrote was the
truth, that she did not like to use lies, and she only liked to work with the
truth; that King continued to say that everything that she had written was a
lie and she should tell the truth; that King then told her that she was suspended
and the Company was going to look for witnesses; that she told King that she
should go get witnesses; that King told her that she had talked badly—used bad
language to the black lady and that she had thrown chicken at the black lady;
that she told King that she should review the video tape; that she then went to
the office with Miguel for 20 minutes; that then she returned to King’s office;
that Campos and Miguel were present, in addition to King; that King told her “to
sign a paper [GC Exh. 25] that said that I had abused a Company objects [sic]
and that I threw chicken,” (Tr. 175); that while she cannot read English, she
signed the document which was written in English[9];
that King made her sign the document; that King then told her that she was
suspended for a few days because she had thrown company objects and the Company
wanted to find out what happened; that initially she refused to give King the company
ID; that King said, “[G]ive me the ID so I don’t have to be forced to call the
police. She told me to give her the ID, I told her no, and she said don’t make
me have to call the Immigration and I can send you—so I’ll send you to your
country,” (Tr. 177); that she then gave King the company ID; that she saw a newspaper
on King’s desk which was about the work stoppage because the picture in the
paper was of a man showing the glove; that she returned to King’s office on
November 3; that, in addition to King, Campos and Miguel were present; that
King told her that there was no work for her; that she asked King if they were
getting rid of her because of the work stoppage; that King told her that she “didn’t
have the right to ask that question because I was only a worker there,” (Tr.
179); that she repeated the question and King gave the same response; and that
she did not throw chicken at the black lady.
On cross-examination,
Rodriguez testified that during orientation one of the policies that was
reviewed was that throwing product was strictly prohibited; that she understood
that any employee who threw product would be terminated; that she did not know
that there was a mechanical problem on her original line on October 31; that
she was having a problem with the work of the black lady and the lady next to
her; that while she complained to Raymundo about the black lady she did not complain
about the other lady who was new and not doing her job correctly; that the
other lady who was new was, like herself, Hispanic; that the new lady next to
her was using scissors and doing the same job she was doing; that since the new
lady next to her was not doing her work correctly, it meant that both legs were
coming to her, Rodriguez, to further process; that Raymundo was across from her
and the black lady was to her right; that the Hispanic lady who was new and not
doing her job correctly was between her and the black lady up until the time
that Raymundo removed her; that she spoke to Raymundo across the line about the
black lady not doing her job correctly; that when she was in King’s office King
called Miguel by radio and Miguel came to King’s office; that by the time Miguel
came to King’s office King had already told her that she was being suspended;
that she did not want to give back her ID because she did not do anything
wrong, she did not throw any chicken; that she did not tell King and Miguel
that she had thrown any product; that she picked up the chicken because it was
piled up, and she handed the chicken to the black lady; that she took five
pieces of chicken and put it where the black lady was working; that she did not
pick up the chicken but rather she pushed it to the black lady who was working
next to her; and that at no time did she actually lift the chicken off the
table.
Subsequently,
Rodriguez testified that she saw the plant floor on the video monitor in King’s
office; that she saw a newspaper in King’s office regarding the work stoppage
and not an 8-1/2 x 11 printed e-mail sheet of paper; that King did translate
into Spanish what she had written in English on General Counsel’s Exhibit 25;
that King did not translate into Spanish the handwriting at the top of General
Counsel’s Exhibit 25, namely “throwing product and cursing at another employee”;
that King simply told her to sign the paper acknowledging that she had thrown
product; that before she signed General Counsel’s Exhibit 25 King told her that
the document indicated that she had thrown product; that King told her that she
had abused the Company; and that King did not tell her that she had thrown
product, King told her that she had abused the Company, or taken advantage of
the Company.
On recross,
Rodriguez testified that King told her that General Counsel’s Exhibit 25 said
that she had thrown an object of the Company; that King did not explain what
General Counsel’s Exhibit 25 said but rather King simply told her that she had
abused the Company; that King told her that she had thrown an object of the
Company, had abused company property, and had used bad language; that King told
her to recognize that she had abused the Company and to sign the document (GC
Exh. 25); and that she understood when she was signing the document that she
was being suspended for 3 days and being asked to come back on November 3.
On redirect,
Rodriguez, who is about 5-feet tall, testified that she always did what King
told her to do.
Raymundo
testified that he supervises lines 11, 12, 13, and 14 in the leg debone department,
which is department number 1145; that on Tuesday he saw a discussion, an argument between Rodriguez and
Johnson; that at the time he was working on line 11 taking the place of a
worker who went to the rest room; that neither Rodriguez nor Johnson, both of
whom work on line 16, normally work for him; that there was a mechanical problem
that day with line 16 so Rodriguez and Johnson were moved to line 12; that the
employees working on line 12 face the employees who work on line 11, and the
line runs between these two tables; that Johnson was working with a knife and
Rodriguez was working with scissors; that there was one employee between
Johnson and Rodriguez and while he could recall that the person was a new employee,
he could not recall the employee’s name; that he did not remove the employee
who was working between Rodriguez and Johnson from the line that day; that
neither before nor during her argument with Johnson, did Rodriguez say anything
to him about the performance of either Johnson or the new lady who was working
between her and Johnson; that he noticed that Johnson was passing the legs with
a bad cut; that he saw Rodriguez take down the leg with the bad cut from the
hook and “throws it to Dominique” (Tr. 208); that “the line comes from there,
there was a person in the middle, then she takes it—the person in the middle
takes it and throws it” (id); that Luz threw it with a side arm motion approximately
3 yards; that while he demonstrated with a pen, standing up, that the object
was held in his right hand and was thrown in a side arm motion across his chest
to his left, Johnson was actually to the right of Rodriguez, and, therefore,
the product would have had to be thrown in the opposite direction than he demonstrated;
that Rodriguez would have had to return the product to her right to Johnson;
that when Rodriguez threw the leg in front of Johnson she started to argue;
that Johnson told Rodriguez, “[C]ome on, push me” (Tr. 212); that Rodriguez
said something in English to Johnson; that he saw Rodriguez throwing the
chicken leg two times; that the argument or discussion between Johnson and
Rodriguez occurred when Rodriguez threw the leg the second time; that he did
not see Johnson throwing any product that time of day; that Johnson left the
line after the argument; that he called Hernandez who went to look for Johnson;
that Hernandez called him and told him to take Rodriguez to human resources;
that 5 or 10 minutes later he was asked to come to human resources and King
asked him to write what he had seen[10];
that he did not verbalize to King what he had seen; that King then asked him to
go back to the line and ask the employees if they saw what happened; that he
spoke to five employees and only one, Ronda, said that he saw what happened;
that he talked to Ronda in human resources with King present; that Ronda gave
King a written statement and he told King what he saw; that Ronda told King
that Johnson was doing a poor job and that Rodriguez “threw the legs back” (Tr.
216); that Ronda did not say whether he saw Johnson throw anything; that there
are video cameras that point toward the lines 11 and 12, but the cameras are
far from those lines in that they are in front of line 1 and beyond; that there
are monitors in King’s office that show “I think from Line 1 to Line 8” (Tr.
217); and that line 1 is closer to the camera than lines 11 and 12 are.
On
cross-examination, Raymundo testified that Johnson is a big women, very tall,
and very heavy; that when an employee leaves the line they are supposed to get
someone to relieve them; that the employee has to have permission to leave the
line or they can get a warning; that Ronda was next to Rodriguez on the line;
that he did not know the name of the women who was working between Johnson and
Rodriguez, she still worked for the Respondent, but she told him that she did
not see what happened; that he saw the legs that Rodriguez was taking down from
the hook and they were not cut the way they were supposed to be cut by Johnson;
that “after Johnson sent a leg through that wasn’t properly cut, Rodriguez
picked it up and put it back in front of Ms. Johnson to do the right cut” (Tr.
228); that Rodriguez was trying to do her job and if Johnson was not doing her
cut correctly, Rodriguez could not do the correct cut; that Rodriguez, who was
using scissors, could not correct the mistakes Johnson, who was using a knife;
that Rodriguez should have taken the product down and shown him the bad work
that Johnson was doing; that he was not watching Johnson and Rodriguez, “I wasn’t
really looking because I was working for someone” (Tr. 229); that Joint Exhibit
1 is his diagram of lines 11 and 12 and who was working where on the day in
question; that hooks and a conveyor belt for the finished product move between lines
11 and 12; that the employees are about 2 feet from each other on lines 11 and
12; that he was approximately 3 feet from Johnson and at that distance he could
tell that Johnson’s cut was improper “[b]ut I was working, so I couldn’t see specifically
the cut that Ms. Johnson was doing” (Tr. 238); that when Johnson raised her
voice he called over to Johnson to calm down but in that moment she left the
line; that he did not go to where Johnson and Rodriguez were on line 12 because
he was working as relief on line 11; that in the affidavit he gave to the
National Labor Relations Board (the Board) he did not indicate that he called
Hernandez but he did call Hernandez; that when Johnson got angry she turned to
face Rodriguez holding the knife up pointing toward the ceiling and she told
Rodriguez to come hit her; that when the employee who he was relieving came
back to the line he took the employees from line 12 to work somewhere else;
that Johnson did not ask permission to leave the line; that all the other
employees on line 11 stopped working; that he did not give Johnson a warning
for walking off the line or for not making good cuts; that King did not ask him
if he saw Johnson throw product; that he told King that Rodriguez gave the
chicken back to Johnson to make the right cut; that Johnson returned to the
line about 30 or 40 minutes after her confrontation with Rodriguez; that
Rodriguez never returned to the line; that he heard King ask Ronda if he saw
Rodriguez throw product; and that King did not ask Ronda if he saw Johnson
throw product.
On redirect,
Raymundo testified that in his affidavit to the Board he did indicate that
Hernandez came over to the line and talked to him after about 2 minutes; that
when he testified on cross-examination that Rodriguez “put” or “laid” the
product back in front of Johnson he meant “[s]he threw it” (Tr. 251) in the
manner he demonstrated earlier; that other employees have been terminated for
throwing product; and that he did not know of anyone who has thrown product who
did not get terminated.
On recross,
Raymundo testified that with respect to the employees who were terminated for
throwing product, two of them were playing and a chicken landed on another employee;
that the employees were throwing chicken at each other and the chicken hit the
floor; that when the employees who are using the scissors on line 12 are
finished their cut they place the product on the conveyor belt; and that
Rodriguez did not place the product back in front of Johnson but rather Rodriguez
threw it in front of Johnson.
Subsequently,
Raymundo testified that an employee using scissors is expected to process about
six chickens a minute and while he was performing this function on line 11 he
was not attempting to engage in any supervisory functions; that notwithstanding
that his attention was focused on the continuously moving line he was working
on, he noticed that there was a problem on the next line “[b]ecause you could
see and hear that they were raising their voices” (Tr. 256); that he heard
raised voices the second time; that he was aware of the first time because “I
noticed when Ms. Luz [Rodriguez] threw the chicken in front of Dominique
[Johnson]” (id.); that while he was working on line 11 as relief he was
performing a dual function in that he was acting both as an employee processing
chickens and at the same time he still wore the supervisory hat in that he was
watching other employees; that before the incident Rodriguez did not speak or
attempt to speak to him about what was going on as far as the performance of
Johnson was concerned; that he wore earplugs on October 31, 2006, when he was
working on line 11; that the fact that he was wearing ear plugs and the fact
that there is “noise everywhere” (Tr. 257) makes it difficult to hear what is
being said at the next table over; that he did not see Rodriguez go behind
Ronda during the incident with Johnson; and that Rodriguez turned to face
Johnson, and Rodriguez backed up but she did not go behind Ronda.
On further
redirect, Raymundo testified that he is not able to do more than six chickens a
minute with scissors; and that he was about 6 feet from Johnson when the
incident occurred.
Ronda testified
that he recalled the incident between Johnson and Rodriguez; that he was
working on line 12 that day next to Rodriguez, trimming legs; that Johnson was
next to Rodriguez[11];
that Johnson was passing legs badly cut; that Rodriguez threw the leg on top of
the table; that Johnson stopped and got angry; that Johnson said something in
English, which he did not understand and Rodriguez responded with two words in
English which he did not understand; that he then told Raymundo what was going
on and about 10 minutes later Raymundo came and got both Johnson and Rodriguez;
that about 20 minutes later Raymundo asked him if he saw what happened and he
told Raymundo that he did see what happened; and that Raymundo asked him to go
upstairs to King’s office to tell her what happened; that he told King that the
black lady had passed the legs poorly cut; and that he also told King:
[Johnson] passed the first leg and then
she passed the second leg, and that’s where Luz took the leg and threw it on
top of the table. And then the lady—the
black lady stopped, turned to look at Luz, and Luz looked back at her. They
both looked at each other. And the black woman started to speak, say things in
English, and Luz responded some things also. [Tr. 267.]
Ronda further testified that during the
incident in question Johnson had a chicken leg in her hand and she threw it on
top on the table because she was angry; that the black lady placed the knife,
which she had in her hand, on top of the table; that he told King what
happened, King wrote out a statement, he reviewed it, and then he signed the
statement (R. Exh. 22); and that the statement is accurate.
On
cross-examination, Ronda testified that when chicken that was badly cut came to
Rodriguez she threw it normally but she threw it; that Rodriguez did not throw
it strongly, “[s]he threw it normally, like slowly” (Tr. 277); that when the
other leg came Rodriguez threw it softly on the table in front of Johnson; that
after he is finished trimming the leg he throws it on the conveyor belt; that
when the leg is poorly cut, he takes the leg and gives it to the person who was
supposed to cut so that they can cut correctly; that he places the leg on the
table in front of the person who was supposed to make the proper cut with the
knife; that when Johnson became angry she put her knife on the table and she
turned to face Rodriguez; that 20 minutes later both Johnson and Rodriguez left
the line; and that when he spoke with King she asked him if he saw Johnson
throw chicken.
Subsequently,
Ronda testified that after Johnson and Rodriguez had the verbal exchange he
called Raymundo and told Raymundo what was going on, and “when . . . [Raymundo]
saw it they [Johnson and Rodriguez] were arguing” (Tr. 283); that he whistled
at Raymundo who was on the other line [“either Line 11 or Line 10” (id.)] and
he called Raymundo; that at the time Raymundo was talking and teaching the work
to other workers; that when he called Raymundo he saw what was happening and
Raymundo came immediately to line 12; that he told Raymundo that the black lady
was not working well; that when he told Raymundo this Johnson and Rodriguez had
already argued; that the black lady was still on the line when he spoke with
Raymundo; that Raymundo said that he would take care of it and then Raymundo
spoke with the black lady; that he could not hear what Raymundo said to
Johnson; that he could not remember if the black lady continued to work on the
line or if Raymundo took them off the line; that he thought that Rodriguez
tried to get Raymundo’s attention with respect to Johnson not doing her job
properly; that on October 31, 2006, he had two conversations with Raymundo,
namely when he told Raymundo Johnson was not doing her job properly and when Raymundo
asked him if he saw what happened; that there are no vertical partitions
dividing the table that he and the other employees were working at on line 12;
that the long table is a flat surface where eight employees work; that there is
nothing between one employee and another employee working at the table on line
12; that he told King that he saw the black lady throw chicken on top of the
table; and that King only asked him if Johnson had thrown a leg or a piece of
meat; and that during the exchange Rodriguez did not attempt to get behind him
so that he would be between her and Johnson.
On recross,
Ronda testified, “I told her [King] that Luz first threw a chicken leg and then
the black lady threw also a chicken leg.” (Tr. 292.)
King testified
that she tells employees that if they feel intimidated in any way, if they have
a problem of any kind, they should come and see her and they will not get in any
trouble; that it does not matter if they are on the line when they want to come
to see her; that this has happened before and after October 31, 2006; that
Respondent’s Exhibit 2 is the employee handbook; that Good Manufacturing
Practices are rules which are United States Department of Agriculture regulated
and which were developed basically for food safety; that Respondent’s Exhibit 3
is a Power Point presentation Respondent shows to all of its employees; that
page 12 of Respondent’s Exhibit 3 indicates that “[t]hrowing product or any
other item is PROHIBITED”, and that “[a]ny person that violates this rule will
be terminated immediately”[12];
that Respondent’s Exhibit 4 is the Power Point orientation presentation; that
during her orientation Rodriguez signed on October 13, 2006, a Spanish rendition of “Good Manufacturing
Practices & Operation Sanitation Procedures” which includes, inter
alia, “23. Throwing product or any other
item is PROHIBITED. Any person who violates this rule will be terminated immediately,”
Respondent’s Exhibit 19; that on the morning of October 31 she became aware of
a problem between Rodriguez and Johnson when Johnson, a large black lady who
had had problems with Hispanic employees in the past, came to her office and
told King her version of what happened between her and Rodriguez; that Johnson’s
“version of the story was apparently Luz [Rodriguez] wasn’t happy with her
cuts, and she started throwing the meat back at her. . . . and by the second time when she threw meat
back at her . . . they engaged in . . . [a] verbal confrontation” (Tr. 366);
that she had Johnson write a statement about what happened[13];
that she then asked that Rodriguez be brought to her office; that Rodriguez “made
it out to be that Dominique was the only one that had thrown product at her,
that had cussed her out, that she wasn’t doing her job right. . . . [Johnson] was not doing her job right and she
was just giving it back to her” (Tr. 368); that Rodriguez gave a written statement,
General Counsel’s Exhibit 24, which is described above; and that Raymundo
told me he was right in front of them;
that he saw the whole thing; that he saw Luz throwing the—in fact throwing the product at
Dominique, and confirming the first story I heard that they had a verbal
confrontation; that they had looked at each other, had faced each other, and
that there was no physical contact. And he didn’t see Dominique throw any
product. [Tr. 369.]
King further testified that Raymundo gave
a written statement (R. Exh. 21); that she asked Raymundo to find out if any
other employee saw what happened and he brought Ronda to her office; that Ronda
told her that he saw Luz get mad at Dominique for not doing her job right and
throwing the product back at her; that she asked Ronda if he saw Dominique
throw product at Luz “and he told me no” (Tr. 371); that she helped Ronda write
out a statement by asking him again what happened and he dictated while she
wrote; that she gave the statement to Ronda, he read it, she asked him if there
were any changes, he said, “[N]o,” and Ronda signed the statement; that at no
point during her conversation with Ronda did he say anything about Johnson
having thrown product; that she sent Ronda back to work, called Rodriguez back
into her office, and told her that she was going to have to suspend her for
throwing product; that while throwing product calls for immediate termination,
she suspended Rodriguez so she could discuss the matter with Campo since she
was not the one who makes the final decision about terminations; that when she
told Rodriguez that she was suspended for throwing product Rodriguez asked her
if Dominique was going to be suspended; that she prepared a document
memorializing the suspension and she read the document in Spanish to Rodriguez
word for word, and then had Rodriguez sign the document; that she told
Rodriguez to come back the following Friday for a job evaluation; that she did
not tell Rodriguez that her version of the event was all lies; that she did not
call Rodriguez any names; that Rodriguez was suspended because there had to be
preparation for the job review, “[y]ou have to look at whether the employee’s
probationary or not. . . . previous work history . . . ., attendance . . . .,
precedence, what has the Company done before, [and] consistency in any—in any
human resource department is always the key” (Tr. 377 and 378); that she “was
pretty much told by Armando [Campos] and Charles who had been there for over 10
years now (apparently referring to Charles Rigdon, who is the Respondent’s general
manager and who is located in Morganton); and that throwing product has always
been termination, period. So there was no question in my mind then that Luz was
going to be terminated” (Tr. 378); that Respondent’s Exhibit 23, which is a
payroll change notice that she prepared for Rodriguez dated November 3, 2006,
gives as the reason for termination “Misconduct”; that misconduct could be
anything; that she met with Rodriguez on Friday, November 3, 2006, and she had
Raymundo present because Rodriguez had been so ugly toward her when she
suspended Rodriguez; that Cua came into the meeting later because he was the
one who was going to have to walk her out; that at the November 3 meeting she
asked Rodriguez if she remembered that during orientation she was told that
throwing product calls for termination and Rodriguez said, “[Y]es”; that she
then told Rodriguez that she was terminated; that Rodriguez allegedly said, “[T]ell
me that you’re suspending me because I’m with the Union” (Tr. 380); that she
told Rodriguez that she was being terminated for throwing product; that Rodriguez
again said, “[T]ell me you’re terminating me because I’m with the Union”; that
she told Rodriguez that her job was being terminated; that Rodriguez left with
Cua; that she has two monitors in her office, with one showing the outside view
of the front and back of the property, and the other one showing nine different
views from nine different cameras inside the plant; that she did not have anything
pointing out to leg debone; that there is a video tape for the nine cameras
which only records what she has on the monitors; that there is a monitor in
Plant Manager Doug Hatley’s office which is facing line 1 leg debone but it
would not be able to catch anything in the middle of the leg debone lines; that
other employees have been terminated for throwing product, Respondent’s Exhibits
24 (Luis Aguilar), 25 (Juleo Tomassini for “throwing chicken down a drain”), 26
(Raynaldo Moralez), and 27 (Jeronimo Say); and that she did not say, “[Y]ou’ve
only been here a little while and you’re already causing problems” either
during her interview meeting with Rodriguez or her suspension meeting with Rodriguez.
On
cross-examination, King testified that when the line is running and an employee
leaves the line without permission, this causes the line to stop; that if an
employee feels intimidated enough to cry, the employee has the right to stop
the line anytime the employee wants to come to talk to her; that employees are
routinely issued warnings for leaving the line without permission, for cussing,
and for not cutting the chicken properly; that she was not working in the plant
when the incident covered by Respondent’s Exhibit 26 occurred, she did not
review the documents in this employee’s personnel file before she testified
herein, and there are no documents in the employees personnel file to reflect
what the circumstances were surrounding the throwing product incident by
Moralez (Tr. 407); that on General Counsel’s Exhibit 31, which is a copy of a
computer record of Moralez’ termination, the reason given for the action is “Horseplay/throwing
product”; that Moralez’ payroll notice (R. Exh. 26), just indicates throwing
product; that she was not employed at the involved facility when the incident
covered by Respondent’s Exhibit 27 occurred, she did not review the documents
in that personnel file before she testified at the trial herein, and General
Counsel’s Exhibit 30 which is a copy of a computer record of say’s termination,
gives as the reason for the action “Horseplay/Throwing product”; that she was
not employed at the involved facility when Aguilar was discharged for throwing
product, she did not review his file before she testified at the trial herein,
and, therefore, she did not know the circumstances under which he was
discharged; that she was not employed at the involved facility when Tomassini
was discharged for “throwing chicken down the drain” (R. Exh. 25), and she did
not review his file for any notes concerning the circumstances of him putting
the product down the drain before she testified at the trial herein; that she
would describe what is alleged to be Tomassini’s act as destruction of company
property; that Rodriguez denied throwing the product at Johnson but Rodriguez
said that she threw the product at the table; that after she suspended
Rodriguez she did speak to a couple of the employees who were working near
Rodriguez and Johnson when the incident occurred but they denied seeing
anything and there was no need to put anything in the file for it; that she did
not remember which employees she spoke with regarding what they witnessed; that
she did not recall whether she said anything about speaking to the other
employees when she gave her affidavit to the Board; that the prohibition
against throwing product refers to the throwing of anything; that General Counsel’s
Exhibit 29, which refers to employee Marcelino Bulux who is still employed at
Respondent, indicates that Bulux threw a handful of ice at another employee
hitting him on his side; that General Counsel’s Exhibit 28 is a disciplinary report,
a written warning, for Juan Garza dated “3–22–07” for engaging in horseplay
where he picked up another employee and threw the other employee (partially on
the belt where product is transported which could result in line shutdown); and
that Cynthia Garza is still employed by the Respondent notwithstanding that she
was involved in an incident where she hit another employee in the face with
chicken neck with the head still attached (GC Exh. 26). Counsel for Respondent
stipulated (a) there was nothing in Cynthia Garza’s file that would reflect any
discipline, and (b) with respect to General Counsel’s Exhibits 34 and 35, both
of which are copies of computer records and both of which give as the reason
for termination “Horseplay/Throw-ing product,” that there is nothing else other
than what is in this record that would reflect the circumstances of the incidents
involving Aguilar and Tomassini, respectively.
Subsequently,
King testified that she did not review the video for the one camera that faced
the leg debone department because there was no way that it would have recorded
what happened between Rodriguez and Johnson since you could barely see lines 1
and 2; that she has told employees that they can just walk away from the line
if they feel intimidated without asking permission or speaking to a supervisor;
that she herself did not do an independent review to look at prior personnel
decisions regarding throwing product but rather she asked Campos and Rigdon
what Respondent had done before with incidents of throwing product; that she
personally did not look at the personnel files of other employees who were terminated
for throwing product; that there are two cameras in the leg debone department;
that she did not know if the cameras in the leg debone department can be
adjusted so that they take in more than lines 1 and 2; that she did not look at
the cameras but rather just at the monitor; and that she did not review any
tapes.
On recross, King
testified that she assisted counsel in formulating Respondent’s response to the
unfair labor practice charges; that in the response it is indicated that “Respondent
admits that it maintains a number of security cameras on premise and, in fact,
there are three in what is generally referred to as the Leg Debone area” (Tr.
451); that she told employees that they could walk away from the line if they
are upset or intimidated; that she did not have a meeting where she told all
the employees this, it was just a practice that everybody knows from previous
incidents when people had walked off the line to come and talk with her; that
Campos, Yolandra Cardinez, and Hernandez told her that there had been other discharges
for throwing product in the past; that Campos told her, for Rodriguez’ job review,
that if throwing product meant termination, then Rodriguez should be terminated
as that was the past practice; that Campos did not have any documents with him
during this conversation to show that other people had been discharged for
throwing product, and he did not give her any specific examples of discharges
for this conduct; and that she never looked in the documents for examples until
she was responding to the unfair labor practice charges.
Cua testified
that King called him to her office and told him that he had to walk someone out
who she suspended; that he went to King’s office; that he overheard King
telling Rodriguez that she “needed to sign her statement, whatever she been
told her, but she relayed Company policy, and just sign here. . . . she . . .
started reading to her, and then said, ‘Here. Sign it right here.’ And she
signed it, and then I walked her out” (Tr. 468); that on Friday, November 3, he
was present for the whole meeting when Rodriguez was informed that she was
being terminated; that during the November 3 meeting King told Rodriguez that
she was terminated for throwing product and this was something that was
explained during orientation; and that Rodriguez told King two times that she
was terminating her because she protested the day the employees stopped
working.
Subsequently,
Cua testified that 23 chicken legs a minute are processed on line 11 in leg debone;
and that the individual employee working on line 11 is expected to individually
process 23 chicken legs a minute.
Analysis
Paragraph 6 of
the complaint alleges that on October 27 Cua and King threatened employees with
calling immigration.[14]
The General
Counsel on brief, contends that it is a violation of the Act to threaten
employees with calling the Immigration and Naturalization Service (INS or
Immigration) when employees engage in union or protected activity, Precision Concrete, 337 NLRB 211 (2001),
enfd in relevant part at 334 F.3d 88, 93 (D.C. Cir. 2003), and Westchester Iron Works Corp., 333 NLRB
859 (2001); that it is more than probable that Cua made this violative threat;
that King’s denial that she threatened to call Immigration is not credible in
that throughout the trial King’s testimony was inconsistent and often
contradicted Respondent’s other witnesses; that King had a propensity to form
testimony to suit Respondent’s case; and that Rodriguez was a credible and
forthright witness.
Respondent on
brief, argues that both Cua and King denied threatening to call Immigration on
October 27 and the evidence offered by the General Counsel simply is not
credible; that the only witness offered in support of this allegation is
Rodriguez, who is a most unimpressive witness; that no other employee supported
Rodriguez’ testimony; that although there were at least 50 other employees in
the vicinity when King was speaking to employees when they came back to get
their paychecks, including Rodriguez’ friends, Edgar and Martha, no other employee
supported Rodriguez’ dramatic testimony that King told the employees “not to
force her to call the police or [I]mmi-gration because I will send you back to
your country” (Tr. 161); that Rodriguez’ testimony about these threats has the
ring of being contrived in that in both instances she alleges that Cua said, “[D]on’t
make us call—have to call Immigration” (Tr. 157) and King allegedly said, “[N]ot
to force her to call the police or Immigration” (Tr. 161); that the similarity
of these alleged statements indicates fabrication; that Rodriguez in general
was contradicted and incredible in numerous respects; that Rodriguez admittedly
lied when she was asked for her company ID on October 31; that while Rodriguez
testified that she knew no English at all (Respondent cites transcript page 200
where Rodriguez testified, “I don’t even know how to speak English.” But at
transcript pages 149 and 150, at the outset of her testimony, Rodriguez was
asked if she spoke English and she replied, “No, a little bit.”), Ronda and
Raymundo testified that Rodriguez uttered at least two words in English during
her confrontation with Johnson; that while Rodriguez testified that she hid
behind Ronda during her confrontation with Johnson, Ronda, and Raymundo
testified that this was not the case; and that the employees’ work stoppage had
become unprotected at the time the threats were allegedly were made and consequently,
even if, assuming arguendo, they were made, they did not violate the Act.
I do not believe
that counsel for the General Counsel has demonstrated by a preponderance of the
evidence that Cua and King threatened to call Immigration on October 27.
Counsel for the General Counsel produced only one witness to support these
allegations. That witness, Rodriguez, is one of the two alleged discriminatees
in this proceeding. She has a monetary interest in the outcome of this
proceeding. Her testimony is not corroborated albeit there were many, many
people present when the statements were allegedly made. Additionally, it is not
clear why King, on October 27 when she was telling the employees that the glove
policy was going to be enforced on Monday, October 30, and the employees had to
make up their minds whether they wanted to work on Monday, would tell the
employees to leave and not to force her to call Immigration. There is no
allegation that the employees were engaged in a sit down strike when they came
back to the facility in the afternoon to pick up their paycheck. Indeed it
appears that it was just the opposite. At least one employee, according to Rodriguez’
own testimony, told King that they had come to pick up their paycheck and they
did not want to hear what King had to say. In other words, it has not been
shown that the employees wanted to do anything other than get their paychecks
and get out of Respondent’s facility. As pointed out by Respondent, Rodriguez admittedly
lied about her company ID I believe that Rodriguez also lied under oath about
what she said in English to Johnson during their confrontation on October 31. I
believe that the two words that Ronda and Raymundo heard Rodriguez say to Johnson
during this confrontation were “Fuck you.” (See R. Exh. 20 which was not
received for the truth of the matter asserted.) A threat to call Immigration is
a very serious charge. Counsel for the General Counsel has not produced
sufficient evidence to warrant a finding that this threat was made by either
Cua or King on October 27.
Paragraph 7 of
the complaint alleges that Respondent terminated
With respect to
Dimas (a/k/a
With respect to
Dimas (a/k/a Zamora) and Rodriguez, Respondent on brief argues that the
complaint by implication concedes that the October 27 protest was unprotected
in that it is not alleged that calling in the police was a violation of the
Act; that the General Counsel effectively concedes the unprotected
“tresspassory” (R. Br. 21) nature of the job action; that an employer can
terminate leaders of an unprotected job action without violating the Act; that
while discussing employee grievances with the press may in certain circumstances
constitute protected activity, this particular newspaper article cannot be
divorced from the unprotected work stoppage itself; that because the activities
of Dimas and Rodriguez were not legally protected the unlawful discharge
allegations fail as a matter of law; that the General Counsel failed to
establish animus toward either the work stoppage or the newspaper article; that
Dimas and Rodriguez were terminated solely for independent intervening events
that occurred early the following week; that the General Counsel has failed to
make a prima facie showing sufficient to support an inference that the
protected conduct was a motivating factor in the employer’s decision to
terminate these two employees; that there must be some evidence of employer
animus directed at the employee’s protected activity; that an employer may act
on the reasonable belief that an employee committed the offense charged; that
the issue is whether the employer’s belief as to the facts was honestly held
and whether these facts (as believed) were such that the employer likely would
have been motivated to act as it did; that while the timing of the two terminations
brings into question an inference of animus, the timing actually favors
Respondent, close timing between protected activity and termination may go a
long way toward establishing animus when there is no apparent intervening cause
for the termination, but when there is such an intervening cause and the
termination follows shortly thereafter, the timing factor favors the employer, Woodruff & Sons, Inc., 265 NLRB 345,
347 (1982); that this is not one of those rare cases in which the Board can
infer animus “from evidence of blatantly disparate treatment” (R. Br. 27), New Otani Hotel & Garden, 325 NLRB
928 (1998); that although counsel for the General Counsel attempted to show
disparate treatment she fell short of establishing “blatant disparity” (Id.);
that while Respondent sometimes accommodated alleged workers’ compensation
injuries that later turned out to be nonwork related, Respondent did so only
while the cause of the condition was being investigated and only when the
safety department was supervising and directing the employee’s medical care;
that “[t]here is no evidence that
Respondent ever accommodated an employee based on a note that the employee
obtained from her own personal physician” (Id. at 28, emphasis added); that
Respondent treated Dimas (a/k/a Zamora) as a probationary employee since September
2006, long before the work stoppage; that there is no showing of blatant
disparity regarding Dimas; that with respect to Rodriguez, there is zero
tolerance for throwing product, two coworkers and a supervisor told King that
they observed Rodriguez throwing product, whether she actually did is immaterial,
and Respondent clearly believed in good faith that she had thrown product; that
whether Johnson threw product is not clear; that Raymundo did not see Johnson
throw product; that Johnson denied throwing product (This would be hearsay
since Johnson did not testify at the trial herein.); that while Ronda testified
that he saw Johnson throw product and he told King about this, the statement he
signed does not indicate that Johnson threw product and he testified that the
statement was accurate and it contained everything he told King; that Johnson
was terminated a few months after her confrontation with Rodriguez for
attendance problems and there was no reason for King not to terminate her over
her October 31 confrontation with Rodriguez, if Johnson did in fact throw product;
that there is insufficient record evidence upon which to base a finding of
unlawful motivation; that counsel for the General Counsel has not shown animus;
that assuming arguendo that the General Counsel established a prima facie case,
Respondent carried its Wright Line,
supra, burden in that Respondent’s standard practice regarding probationary
employees who are medically restricted for personal reasons is to terminate
their employment, subject to reapplying and being rehired after 30 days; that
Dimas was treated consistently with this practice; that Rodriguez was terminated
consistently with Respondent’s policy and practice of terminating employees who
throw product; and that assuming arguendo that Dimas was unlawfully terminated,
she is not eligible for the standard reinstatement and backpay remedy since the
decisions in Sure Tan, Inc., supra,
and Hoffman Plastic, supra, hold that
the Board is without power to award reinstatement or backpay to an alien.
Regarding the
arguments made by Respondent with respect to Dimas (a/k/a Zamora), the fact
that it did not specifically take any action against Dimas for her role in what
Respondent describes as an unprotected job action demonstrates that Respondent
was not relying on this at the time of her termination. The same would apply
with respect to Rodriguez. Both Dimas and Respondent played the system. Neither
one came into this proceeding with clean hands. Dimas committed crimes to get
and keep her job with Respondent. Respondent accommodated Dimas notwithstanding
that any reasonable person would have asked what was going on when a person
changes their name, social security number, and their birth date, making them
more than 2 years younger than previously represented. If the situation at hand
were approached in terms of the equities involved, one might ask why Respondent
did not treat Dimas as a senior employee on October 30. In my opinion, Respondent
knew exactly what was going on with respect to her employment status. But Dimas
herself created the situation when she gave Respondent the fraudulent
documentation. The fiction of Dimas being a probationary employ was put in
place in September 2006, long before the October 27 work stoppage. And it was
put into place effectively at the behest of Dimas as a means of her keeping her
job. So from a labor law standpoint, the fact that Dimas on October 30 was a
probationary employee could not have been unlawfully motivated. Respondent took
advantage of the situation. But Dimas put in play the means by which Respondent
was able to take advantage of the situation, and this was done long before the
work stoppage. Under Wright Line,
supra, Dimas engaged in protected concerted activity. Even if one takes the
position that the work stoppage lost the protection of the Act because the
employees refused to leave the Company’s premises resulting in the police being
summoned, there is still the newspaper article in which Dimas (a/k/a
With respect to
Rodriguez, the General Counsel on brief contends that but for Rodriguez’
participation in the work stoppage Respondent would not have discharged Rodriguez;
that when Rodriguez participated in the work stoppage and spoke to newspaper reporters
on behalf of the participating employees who were protesting Respondent’s
change in the glove policy, she was engaged in concerted activity that is protected
by the Act; that King admits that she saw the newspaper article in which
Rodriguez was quoted as the spokesperson of the employees who engaged in the
work stoppage; that the first requirements of Wright Line, supra, are met, namely that the employee engaged in
activity protected by the Act and the Respondent had knowledge of that
participation; that Respondent’s unlawful motive in discharging Rodriguez
because of her protected activities is established by the suspicious timing of
the discharge, the one-sided investigation of the events leading to the
discharge, and the disparity between Respondent’s treatment of Rodriguez and of
other employees involved in similar incidents; that Raymundo testified that he
could give a warning for throwing product but he was not involved in the
decision to discharge Rodriguez; that the disparity in the treatment of Johnson
and Rodriguez is a result of Rodriguez’ involvement in the work stoppage and
her designation as a spokesperson for the other employees; that while King
testified that precedence is the most important factor considered by Respondent,
prior to Rodriguez’ discharge she did not conduct an independent review to look
at prior personnel decisions regarding throwing product nor did she personally
examine the personnel files of other employees terminated for throwing product;
that she relied on the representation of top management that Respondent had a
precedence of discharging employees who throw product; that King asserts that
Campos stated that if throwing product meant termination then Rodriguez should
be discharged but he did not provide King with any documents to show King that
other employees had been terminated for similar conduct; that Respondent did
not present one instance of discharge of an employee who returned poorly cut
chicken to an employee on the line either by tossing it on the table in front
of the employee or by any other method; that the examples cited by Respondent
involve situations where the employee who was discharged was engaged in
horseplay and/or the sponsoring witness was unable to testify about the circumstances
surrounding the discharge; that Rodriguez was not engaged in horseplay; that counsel
for the General Counsel presented evidence that Respondent failed to discharge
or even suspend employees whom it accused of throwing items in the plant,
namely (a) Gerra, who is presently employed at Respondent, hitting another
employee in the face with a chicken neck with the head still attached, and (b)
Buluz, who is presently employed at Respondent, receiving a verbal warning for
throwing ice and hitting another employee with it; and that the timing of the
discharge of Rodriguez, the sham investigation into the chicken throwing
incident, and the disparity of Respondent’s treatment of Rodriguez establish
that Respondent discharged Rodriguez because of her protected concerted
activity or participating in a work stoppage and of speaking to the press on
behalf of employees.
Respondent’s
arguments regarding Rodriguez are set forth above.
As pointed out
by counsel for the General Counsel on brief, that the first requirements of Wright Line, supra, are met, namely that
Rodriguez engaged in activity protected by the Act and the Respondent had
knowledge of that participation. As noted above, counsel for the General
Counsel goes on to contend that Respondent’s unlawful motive in discharging Rodriguez
because of her protected activities is established by (1) the suspicious timing
of the discharge; (2) the one-sided investigation of the events leading to the
discharge; and (3) the disparity between Respondent’s treatment of Rodriguez
and of other employees involved in similar incidents. Again, the employee Rodriguez
dictated the timing in that she admittedly got into a confrontation with
Johnson on October 31. Rodriguez herself presented the Respondent with a
situation that it had to resolve. The timing is not suspicious, and it should
not reasonably lead to the conclusion that animus or unlawful motivation should
be inferred based on this. The investigation of the incident was not one-sided.
King spoke with and had written statements from Johnson, Rodriguez, Raymundo,
and Ronda. If Ronda’s testimony had not been equivocal about whether he advised
King that he saw Johnson also throw product, this conclusion might be
different. But in view of his testimony that his written statement was accurate
and complete, and the written statement does not mention Johnson throwing
chicken, I do not believe that it can be concluded that Respondent’s
investigation of the incident was one-sided. But as pointed out by the General
Counsel on brief, while King testified that precedence is the most important
factor considered by Respondent, prior to Rodriguez’ discharge she did not
conduct an independent review to look at prior personnel decisions regarding
throwing product nor did she personally examine the personnel files of other
employees terminated for throwing product. Instead, King relied on the
representation of top management that Respondent had a precedence of
discharging employees who throw product. King asserts that
Respondent
argues that even if counsel for the General Counsel meets her burden under Wright Line and has made a prima facie
showing sufficient to support an inference that the protected conduct was a
motivating factor in the termination of Rodriguez, the Respondent has shown
that it had a legitimate business reason for Rodriguez’ termination. It is
pointed out by the Respondent that if an employer establishes legitimate
grounds for adverse action and there is no evidence of similarly situated
employees being treated more favorably, the employer has carried its Wright Line burden. Respondent argues
that Rodriguez was terminated consistently with policy and practice. I do not
agree with Respondent’s argument. Counsel for the General Counsel demonstrated
that this is not the case in that she showed similarly situated employees being
treated more favorably. Counsel for the General Counsel has shown blatant disparate
treatment.
Can one reach
the conclusion that an adverse inference should be drawn with respect to
Rodriguez and not with respect to Dimas even though both employees were engaged
in the same concerted activity? I believe that such an approach is appropriate.
The situations of Dimas and Rodriguez can be viewed differently based in
whether counsel for the General Counsel met her burden of proof under Wright Line regarding them individually.
Respondent’s treatment of Rodriguez vis-a-vis other of Respondent’s employees
warranted an inference of animus and unlawful motivation. In my opinion, counsel
for the General Counsel did not make that showing regarding Dimas. And I do not
believe that the fact that counsel for the General Counsel succeeded in Rodriguez’
situation carries over to Dimas.
Conclusions of Law
On these
findings of fact and conclusions of law and on the entire record, I issue the
following recommended[16]
By terminating
Rodriguez on October 31 (actually on Nov. 3) because she engaged in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection and in order to discourage employees from engaging in such concerted
activities for the purpose of collective bargaining or other mutual aid or
protection, Case Farms of North Carolina, Inc. has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and
(7) of the Act.
Remedy
Having found
that the Respondent has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent
having discriminatorily discharged an employee, it must offer her reinstatement
and make her whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed
in New Horizons for the Retarded, 283
NLRB 1173 (1987).[17]
On these
findings of fact and conclusions of law and on the entire record, I issue the
following recommended[18]
ORDER
The Respondent,
Case Farms of North Carolina, Inc.,
(1) Cease and
desist from
(a) Terminating
an employee because she engaged in concerted activities for the purpose of
collective bargaining or other mutual aid or protection and in order to
discourage employees from engaging in such concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
(b) In any like
or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the
following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14
days from the date of the Board’s Order, offer Luz Rodriguez full reinstatement
to her former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to her seniority or any other rights or
privileges previously enjoyed.
(b) Make Luz
Rodriguez whole for any loss of earnings and other benefits suffered as a
result of the discrimination against her in the manner set forth in the remedy
section of the decision.
(c) Within 14
days from the date of the Board’s Order, remove from its files any reference to
the unlawful discharge, and within 3 days thereafter notify the employee in
writing that this has been done and that the discharge will not be used against
her in any way.
(d) Preserve
and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14
days after service by the Region, post in Spanish and English at its facility
in
(f) Within 21
days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
It is further 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 terminate you because you engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection and
in order to discourage you from engaging in such concerted activities for the
purpose of collective bargaining or other mutual aid or protection.
We will not in any like or related manner interfere with, restrain, or
coerce you in the exercise of the rights guaranteed you by Section 7 of the
Act.
We will within 14 days from the date of the Board’s Order, offer Luz
Rodriguez full reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice to her
seniority or any other rights or privileges previously enjoyed.
We will make Luz Rodriguez whole for any loss of earnings and other
benefits resulting from her discharge, less any net interim earnings, plus interest.
We will, within 14 days from the date of this Order, remove from
our files any reference to the unlawful discharge of Luz Rodriguez, and we will, within 3 days thereafter,
notify her in writing that this has been done and that the discharge will not
be used against her in any way.
Case Farms of North Carolina, Inc.
1 Effective midnight December 28, 2007, Members
Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in
anticipation of the expiration of the terms of Members Kirsanow and Walsh on
December 31, 2007. Pursuant to this
delegation, Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they
have the authority to issue decisions and orders in unfair labor practice and
representation cases. See Sec. 3(b) of
the Act.
2 As discussed below, Dimas was employed under
the false identity of
3 There are no exceptions to the judge’s
dismissal of an allegation that the Respondent violated Sec. 8(a)(1) by
threatening to report employees to the Immigration and Naturalization Service
and his denial of the General Counsel’s motion to amend the complaint to allege
that the Respondent violated Sec. 8(a)(1) by conditioning employees’ continued
employment on their abstention from future concerted activity.
4 All subsequent dates are in 2006, unless
otherwise stated.
5 At the hearing,
Dimas admitted the falsification.
She also admitted that she was not authorized to work in the
6 Although Herrera indicated that employees were
routinely asked to give a written statement about how and when they were
injured, the Respondent could produce only one other example of such a statement
from its files.
7 In fact, as previously stated, the Respondent
first hired Dimas in 1999 and rehired her in 2004. Dimas obviously erred in her statement that
this later event was in 2003.
8 Dimas similarly testified that King told her
she was unable to give her leave because she was a new employee.
9 This incident occurred during King’s tenure
as human resources manager.
10 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved
in NLRB v. Transportation Management
Corp., 462
11 The judge
found that this activity should be treated separately from the group employee
work stoppage in protest of the new glove policy. He concluded that speaking to the press was
protected concerted activity even if the work stoppage itself was unprotected. See fn. 11, infra.
12 The
protection of Sec. 7 of the Act may encompass employee communications about
labor disputes with newspaper reporters.
See, e.g., Hacienda de Salud-Espanola, 317 NLRB 962, 966 (1995). Inasmuch as we agree with the judge that this
activity by Rodriguez and Dimas was severable and independent from the work
stoppage, we need not pass on the Respondent’s exceptions to the judge’s
failure to find that the work stoppage lost the protection of the Act.
13 The General
Counsel has excepted to the judge’s questioning of Dimas’ credibility because
she obtained and retained her job on fraudulent bases. However, we agree with the judge that the
legality of Dimas’ discharge can be determined without resolving the
credibility of her testimony. We
therefore do not rely on the judge’s discussion in fn. 15 of his opinion of
Dimas’ credibility and of Double D
Construction Group, 339 NLRB 303 (2003).
14 E.g., Fluor
Daniel, Inc., 304 NLRB 970,
970 (1991), enfd. 976 F.2d 744 (11th Cir. 1992).
15 E.g., State Plaza Hotel, 347 NLRB 755, 755
(2006), citing Naomi Knitting Plant,
328 NLRB 1279, 1281 (1999). The Board
has stated that in some cases timing alone is sufficient to show that animus
against protected activity is a motivating factor in a discharge. E.g., Sears,
Roebuck & Co., 337 NLRB 443, 443 (2002). In the present case, however, we find that
the timing of the discharges at issue is just one of several circumstantial
factors demonstrating discriminatory motivation.
16 E.g., Knoxville
Distribution Co., 298 NLRB 688 fn. 1, 696 (1990), where the Board found a
violation in the simultaneous discharges of three employees for unrelated
reasons 1 day before a union meeting.
17 Moreover,
even assuming that the employer was motivated in part to discharge Scurek
because of his pay complaint, the Board found this complaint to be unprotected
activity because of “the opprobrious manner in which he voiced the
complaint.” 256 NLRB at 345.
18 Although the
judge found a “blatant” disparity in the Respondent’s treatment of Rodriguez,
we need not rely on this characterization of the evidence. At least where the General Counsel proves
animus based on multiple factors, including disparate treatment, it is not necessary
that the proven disparity be blatant.
E.g., Alstyle Apparel, 351
NLRB No. 92 at slip op. 2 (2007) (evidence of disparate treatment indicates
shift leader Ly’s discharge was motivated by union activities rather than his
tolerance of horseplay on the work floor).
19 See Frye Electric, 352 NLRB No. 53 slip op.
at 12 (2008), and cases cited there (discriminatory discharge of one worker is
a factor to consider in weighing whether the contemporaneous discharge of a
second coworker, who engaged at the same time in the same protected activity,
was discriminatory).
20 Dimas’
situation is distinguishable from those of other terminated probationary
employees cited by the Respondent. Each
of those employees presented notes that specifically requested leaves of
absence for medical conditions.
Furthermore, those conditions precluded any possibility of an immediate
return to work, with or without restricted duties.
21 The General
Counsel seeks compound interest computed on a quarterly basis for any monetary
amounts owing to the discriminatees.
Having duly considered the matter, we are not prepared at this time to
deviate from our current practice of assessing simple interest. See, e.g., Glen Rock Ham, 352 NLRB No. 69, slip op. at fn. 1 (2008), citing Rogers Corp., 344 NLRB 504 (2005).
22 If this
Order is enforced by a judgment of a
[1] All dates are 2006, unless otherwise indicated.
[2] Counsel for General Counsel’s unopposed Motion for an extension of time to file briefs from August 23 to September 17, 2007, was granted.
[3] See p. 8 of R. Exh. 5, which indicates, inter alia, that starting on October 27 every production employee will recrive three pair of gloves every morning at no cost to them—blue for the leg debone personnel and the new better yellow gloves for the employees in the rest of the departments, and that if the employees need more gloves other than the three free pairs provided daily, they must buy them at their own expense which will be the price of .50 cents per pair.
[4] In here statement, Dimas indicated that the metal glove she wore on her left hand for the half day that she used the knife weighed a lot when it was full of grease or fat.
[5] R.
Exh. 1 includes copies of the resident alien card, the social security card,
and the State of
[6]
Dimas gave
[7] At one point Rodriguez testified that the boy was on her right hand side and Johnson was on her left hand side (transcript page 164).
[8] The English translation reads as follows:
10-31-06
Today
Tuesday
Something happens in the
line that had a problem with the black lady. It started when she was in the third cut, she was not
doing the chicken properly. For that reason I told her to make the chicken
right but she started to yell at me in the line and raised a knife at me and
she wanted to hit me and started strongly insulting me.
Only that happened today.
Luz Cordona Rodriguez
When I told her to calm down
she screamed and threw the chicken at me. (stomach)
[9] In the “NATURE OF THE INCIDENT” portion of the form the following appears: “Throwing product and cursing at another employee. Luz is being suspended pending investigation. She will return on Friday 9am (11–3–06) for job review.”
[10] The statement, which is in Spanish, was received as R. Exh. 21. As translated it reads as follows:
I was in Line 11 helping the
person that asked me a favor to help because of the need of having to go to the
bathroom. The people that are on Line 12, Artora moved them from Line 16 to
Line 12. I only saw - I only saw that Ms. Dominique stopped passing the legs -
stopped passing the legs badly cut and stopped passing - and stopped passing
the leg without a cut and the other lady took or lowered the leg from the hook
and threw it on the table of the line where the lady Dominique does the third
cut. Dominique raised her voice and the other answered the same in a raised
voice, and Dominique got angry - got angrier, raising her hands saying hit me
or push me with a knife in the - in the
hand. I didn’t see if Dominique threw something of chicken - some part of the
chicken to the woman because I was working. Daniel Raymundo. [Tr, 221 and 222.]
After the statement was translated, it was submitted that instead of “stopped passing the leg” what was written meant “allowed to pass the legs that were badly cut and allowed to pass one leg that was not cut.” Tr. 222. The interpreter testified that she translated as she saw it written.
[11] At this point, counsel for the Respondent asked “[d]o you recall if there was another lady in between Luz and Dominique” to which Ronda replied, “[y]es, there were. But I don’t remember who they were.” Tr. 265.
[12] This entry includes a picture of a chicken wing on the floor and a drawing of person throwing a pencil, both of which have an X over them.
[13] R. Exh. 20. The statement, which was not offered for the truth of the matter asserted therein, reads as follows:
10-31-06
2nd cutter was not properly
cutting and it was resulting in me getting behind and that 2nd cutter threw the
2nd leg at me. I said what are you doing. She said you can’t cut. I said you
ain’t about 2 [sic] tell me I can’t cut. She said Fuck you. I said come and
fuck me up. I raise[d] my arms, she walk toward me with the scissors in her
right hand. I backed up. The 1st cutter said what’s going on. She turned back
facing the cutting board. I walk[ed] off the line throw[ing] my cutting glove
into the sink. Christian stop[ped] me and said where are you going. I said I’ m
not working no more. I come 2 [sic] Victoria[‘s] office cause things was going
to . . . [escalate].
Johnson did not testify at the trial herein.
[14] Counsel for the General Counsel’s motion to correct the complaint to correctly spell the surname of the human resource supervisor identified therein is granted. The name Miguel Cua will be substituted for Miguel Puac. Counsel for the General Counsel also makes another motion for the first time in her brief, namely to amend the complaint to allege that Respondent violated Sec. 8(a)(1) of the Act by conditioning continued employment with Respondent on a waiver of the right to engage in future concerted activity when King on October 27 told employees that when they return to work on October 30 the glove policy put into effect on October 27 would still be implemented, and that if they did not want to work under that policy “don’t even bother coming.” According to her own testimony, what King said was as follows:
Look, look guys, this is what
you wanted, you got what you wanted. When you come back on Monday, you’re going
to get your three pairs of better yellow gloves you wanted. If you want to
work, come to work. But if you don’t want to work, don’t even bother coming.
Let’s not go through this again. [Tr. 337.]
It does not appear that with this language Respondent, by King, was conditioning continued employment on a waiver of the right to engage in future protected concerted activity. What King was saying was that the policy was not going to change, if they wanted to work with the new policy that was fine, but if they did not want to work on Monday they should not bother coming to work. It does not appear that King was either explicitly or implicitly telling the employees that to be able to go to work on Monday they had to waive their right to engage in future protected concerted activity. Additionally, whether this language in the circumstances existing here is a violation of the Act is first being brought up on brief after the close of the trial. Does counsel for the General Counsel believe that Respondent has had sufficient notice that the lawfulness of this language would be at issue? Counsel for the General Counsel’s Motion to further amend the complaint is denied.
[15] That case is distinguishable. There the employee did subsequently acquire his own valid social security number, and not long after his termination, he provided information to the Respondent in order to correct his own record. There, the majority of the Board concluded that the judge’s discrediting of the employee was based solely on his use of a false social security number to obtain employment; and that this amounted to a disqualification of the employee for his conduct. Here, Dimas did not acquire her own valid social number when she received the SSA letter. Rather she went out and purchased a whole new identity, namely a new false name, a new false social security number (card), a new false permanent resident card, and a new false birthday. R. Exh. 6. And then she gave her new documentation to the Respondent to keep her job. As pointed out in Hoffman Plastics, supra, this is a crime. While she worked for Respondent under her new identity, she never attempted to correct the record. When she testified at the trial herein her remorse for using the identity of another person consisted of her testifying, “I didn’t want to be without employment, and now I regret doing it because it didn’t do me any good.” Tr. 148. Forgetting the legal technicalities for the moment, common sense would dictate that if a person is willing to commit a crime to get a job, then commit a serious crime to keep the job, consideration must be given to the fact that the person would commit a crime (intentionally, falsely testifying under oath about material facts) to get back at those who, from her viewpoint, took that job away from her. As noted above, Herrera testified that when he escorted Dimas out of the facility she told him that he “cheated her out of her job.” Tr. 500. Dimas did not testify on rebuttal to deny making this statement. By law, she did not have the legal right to hold that job in the first place. Here, no matter what the outcome, under Sure Tan, Inc., supra, and Hoffman Plastic, supra, there will be no reinstatement or backpay for Dimas. To resolve whether she was unlawfully terminated I do not have to, and I do not, rely on her credibility. This determination was made at the time of her testimony and took into consideration her demeanor (lack of remorse for committing a crime and she conveyed the distinct impression while testifying at the trial herein the job was what mattered the most), the weight of the respective evidence can be determined without including a consideration of Dimas’ lack of credibility and it does not affect her credibility or the lack thereof, established or admitted facts are what they are in that they do not rehabilitate this witness, and one would have to, in determining inherent probabilities and reasonable inferences drawn from the record as a whole, take into consideration that witness Dimas committed a serious crime to get her job (false social security number), she admittedly committed a very serious crime to keep her job (As pointed out in Hoffman Plastic, supra, it is a crime for an unauthorized alien to subvert the employer verification system by tendering fraudulent documents.), and her only remorse in the end is that she regretted doing it because “it didn’t do me any good.” Tr. 148. It is one thing to use a nonvalid social security number. It is quite something else to buy another person’s identity. To treat such conduct lightly could be misconstrued as encouraging a practice which has become widespread, namely identity theft, which practice can have a devastating effect on its victims, even if limited to just trying to straighten out social security records and the ramifications which flow there from.
[16] If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.
[17] On brief, counsel for the General Counsel requests that the interest be compounded. She points out that his is not currently the Board practice. Unless and until the Board changes its practice, the current Board practice will be applied. Counsel for the General Counsel also requests that (a) the notice be posted in Spanish and English, and (b) Respondent be required to hold group meetings with employees in which an official of the Board can read the notice to employees in Spanish and English. The request to require that the notice be posted in Spanish and English is reasonable under the circumstances of this case, and such request will be granted. No need has been shown herein for the granting of the request to hold group meetings with employees in which an official of the Board can read the notice to employees in Spanish and English, and such request is denied.
[18] See fn. 16, supra.
[19]
If this Order is enforced by a judgment of a