Petition for Writ of Certiorari — Wismettac Asian Foods, Inc., Petitioner v. National Labor Relations Board
Supreme Court briefMay 19, 2022
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APPENDIX TABLE OF CONTENTS
OPINIONS AND ORDERS
Memorandum Opinion of the United States
Court of Appeals for the Ninth Circuit
(February 2, 2022) .............................................. 1a
NLRB Board Decision, Order, and Order
Remanding by Chairman Ring and Members
Kaplan and Emanuel (October 14, 2020) .......... 7a
NLRB Administrative Law Judge, Decision and
Report on Challenges and Objections
(August 30, 2019) ............................................ 27a
REHEARING ORDER
Order of the United States Court of Appeals for
the Ninth Circuit Denying Petition for
Rehearing (February 24, 2022) ..................... 230a
CONSTITUTIONAL AND STATUTORY PROVISIONS
Constitutional and
Statutory Provisions Involved ....................... 232a
OTHER DOCUMENTS
Gustavo Flores Testimony, Transcript
(October 12, 2018) .......................................... 234a
Wismettac Notice to Los Angeles Employees
Regarding Revocation and Resignation
from Union (March 12, 2018) ......................... 257a
Form Letter for Revocation and
Resignation from Union ................................. 258a
App.1a
MEMORANDUM OPINION OF THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
(FEBRUARY 2, 2022)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________
WISMETTAC ASIAN FOODS, INC.,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
________________________
No. 20-73768
NLRB Nos. 21-CA-207463,
21-CA-208128, 21-CA-209337, 21-CA-213978,
21-CA-219153, 21-CA-212285
________________________
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
App.2a
WISMETTAC ASIAN FOODS, INC.,
Respondent.
________________________
No. 21-70142
NLRB Nos. 21-CA-207463,
21-CA-208128, 21-CA-209337, 21-CA-213978
21-CA-219153, 21-CA-212285
On Petition for Review of an Order of the
National Labor Relations Board
Submitted January 13, 2022
Before: GOULD, BENNETT,
and R. NELSON, Circuit Judges.
Wismettac Asian Foods, Inc. (“WLA”) petitions
for review of the National Labor Relations Board’s
(“NLRB” or “the Board”) decision that WLA violated
§§ 8(a)(1), 8(a)(3) of the National Labor Relations Act
(“NLRA”).1 We have jurisdiction under 29 U.S.C. § 160
and affirm. We also hold that the Board is entitled
to summary enforcement of the finding that WLA
violated § 8(a)(1) by promising compensation for rejecting the union. Because the parties are familiar with
the facts, we do not recount them here, except as
necessary to provide context to our ruling.
“Decisions of the NLRB will be upheld on appeal
if the findings of fact are supported by substantial
The panel unanimously concludes this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
1 29 U.S.C. §§ 158(a)(1), 158(a)(3).
App.3a
evidence and if the agency correctly applied the law.”
Loc. Joint Exec. Bd. of Las Vegas v. NLRB, 515 F.3d
942, 945 (9th Cir. 2008). “[W]e may not ‘displace the
NLRB’s choice between two fairly conflicting views,
even though [we] would justifiably have made a different choice had the matter been before [us] de novo.’”
Sever v. NLRB, 231 F.3d 1156, 1164 (9th Cir. 2000)
(first alteration added) (citations omitted).
1. The Administrative Law Judge (“ALJ”) found
that WLA violated §§ 8(a)(1), 8(a)(3) by demoting Ruben
Munoz, terminating Pedro Hernandez, and suspending
and terminating Alberto Rodriguez. “To establish an
unfair labor practice, the [NLRB] must show an unlawful motivation either to discourage union membership
or to interfere with the exercise of protected rights.”
NLRB v. Nevis Indus., Inc., 647 F.2d 905, 909 (9th Cir.
1981). If the Board makes this showing, “the burden
will shift to the employer to demonstrate that the same
action would have taken place even in the absence of
protected conduct.” United Nurses Ass’ns of Cal. v.
NLRB, 871 F.3d 767, 778–79 (9th Cir. 2017) (citations
and quotation marks omitted).
The ALJ’s finding that WLA’s adverse actions
against Munoz, Hernandez, and Rodriguez violated
§§ 8(a)(1), 8(a)(3) was supported by substantial evidence. WLA knew of the three employees’ support for
the union. WLA indicated hostility toward the union;
for example, manager Frank Matheu said that “under
no condition[ ] would he allow . . . the Union to come
into the company.” Matheu conceded that at least one
allegation in a written warning against Munoz was
false and that he did not know of at least one stated
reason for Rodriguez’s dismissal. WLA’s stated reasons
for firing Hernandez were unsubstantiated and shifted.
App.4a
Matheu told Hernandez that he was let go because
his contract expired and gave no other reason, but
Matheu testified before the ALJ that Hernandez was
fired due to unsubstantiated claims of creating a hostile
work environment. This evidence provides substantial
support for the ALJ’s findings. See Healthcare Emps.
Union, Local 399 v. NLRB, 463 F.3d 909, 922 (9th
Cir. 2006) (“[A] flimsy or unsupported explanation may
affirmatively suggest that the employer has seized upon
a pretext to mask an anti-union motivation.” (alteration
in original) (quoting NLRB v. Dillon Stores, 643 F.2d
687, 693 (10th Cir. 1981))).
2. The ALJ found that WLA violated §§ 8(a)(1),
8(a)(3) by refusing to re-hire Hernandez, Fanor Zamora,
and Jeremiah Zermeno. Refusing to hire an applicant
because of his union activities is an unfair labor practice. See Frankl v. HTH Corp., 650 F.3d 1334, 1362 (9th
Cir. 2011) (citing FES, a Div. of Thermo Power, 331
N.L.R.B. 9, 12 (2000)). In determining if an employer
refused to hire an applicant due to union activities,
the Board applies the motivation test from Wright
Line, a Div. of Wright Line, Inc., 251 N.L.R.B. 1083
(1980), as stated in FES:
(1) that the [employer] was hiring, or had concrete
plans to hire, at the time of the alleged unlawful
conduct; (2) that the applicants had experience
or training relevant to the announced or generally known requirements of the positions for
hire, or in the alternative, that the employer has
not adhered uniformly to such requirements, or
that the requirements were themselves pretextual
or were applied as a pretext for discrimination;
and (3) that antiunion animus contributed to the
decision not to hire the applicants.
App.5a
FES, 331 N.L.R.B. at 6 (footnotes omitted) (citing
Wright Line, 251 N.L.R.B. at 1083). If the Board
“meets this prima facie burden, thus creating an inference that union animus was a motivating factor in
the decision to hire, the employer must . . . demonstrate that it would have made the same decision in
the absence of the discriminatees’ union affiliation.”
Blaylock Elec. v. NLRB, 121 F.3d 1230, 1233 (9th Cir.
1997) (citation omitted).
As to the first FES factor, WLA made at least 21
new hires in warehouse positions after Hernandez,
Zamora, and Zermeno applied. As to the second FES
factor, Hernandez, Zamora, and Zermeno applied for
the positions they had worked in before their dismissal. As to the third FES factor, WLA knew or likely
knew that these employees supported the union. WLA
many times showed hostility toward the union. And
a finding of unfair labor practices does not require an
employer to discriminate against every known employee
who supports the union.
3. The ALJ’s finding that WLA violated § 8(a)(1)
by soliciting employees to revoke union authorizations
is supported by substantial evidence. See NLRB v.
Deutsch Co., Metal Components Div., 445 F.2d 902,
906 (9th Cir. 1971). WLA mailed employees a letter
explaining how to revoke authorization with a sample
revocation letter attached. WLA held meetings in
which sample revocation forms were distributed, and
its labor consultant told workers in those meetings
that “the Union is not going to win” the election. The
consultant testified that WLA wanted to explain “how
can [employees] get rid of this union? How can [employees] retrieve [their] union authorization card . . .
because [employees are] tired of this?” But there is
App.6a
no evidence that any employee ever inquired with
WLA about revoking union authorization.
There is also substantial evidence of a coercive
environment. Following the union’s recognition request,
WLA stationed armed security guards at the entrance
to the warehouse. The day before the first union election, WLA held a mandatory meeting at which armed
security guards stood in front of the door. At the meeting, Matheu said that “under no condition[ ] would
[Matheu] allow . . . the Union to come into the company.”
4. As WLA does not dispute that it violated § 8
(a)(1) by promising to compensate workers for rejecting
the union, the Board is entitled to summary enforcement of this portion of its order. See Gardner Mech.
Servs., Inc. v. NLRB, 115 F.3d 636, 643 n.2 (9th Cir.
1997). The other findings that the Board claims were
uncontested (addressed above) were contested.
AFFIRMED.
App.7a
NLRB BOARD DECISION, ORDER, AND
ORDER REMANDING BY CHAIRMAN RING
AND MEMBERS KAPLAN AND EMANUEL
(OCTOBER 14, 2020)
NATIONAL LABOR RELATIONS BOARD,
WASHINGTON, D.C. 20570
________________________
WISMETTAC ASIAN FOODS, INC.
and
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, LOCAL 630
and
ROLANDO LOPEZ
________________________
Cases: 21-CA-207463, 21-CA-208128,
21-CA-209337, 21-CA-213978, 21-CA-219153,
and 21-CA-212285
On August 30, 2019, Administrative Law Judge
Eleanor Laws issued the attached decision. The Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief. In addition, the General Counsel filed limited cross-exceptions
with supporting argument.1
1 On November 22, 2019, the Board granted the General Counsel’s
unopposed motion to sever Case 21–RC–204759 from the abovecaptioned cases and remand it to the Regional Director. The
App.8a
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings,2 and
case caption has been amended to reflect the severance of the
representation case.
2 The Respondent has excepted to some of the judge’s credibility determinations. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect Standard Dry Wall
Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis
for reversing the findings.
The Respondent has excepted to the judge’s finding that it
violated Sec. 8(a)(3) and (1) by issuing Alberto Rodriguez a
written warning on December 21, 2017. However, the Respondent does not state in either its exceptions or brief in support of
any grounds on which the judge’s purportedly erroneous finding
should be reversed. Therefore, in accordance with Sec. 102.46
(a)(1)(ii) of the Board’s Rules and Regulations, we shall disregard this exception. See Holsum de Puerto Rico, Inc., 344 NLRB
694, 694 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir. 2006).
We adopt the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) by refusing to consider for rehire and refusing to
rehire discriminates Pedro Hernandez, Fanor Zamora, and
Jeremiah Zermeno. We leave to the compliance stage of this
proceeding the determination of whether the Respondent is
required to rehire these discriminatees directly, as opposed to
through a temporary employment agency.
In affirming the judge’s finding that the Respondent violated
Sec. 8(a)(3) and (1) by refusing to consider for rehire and
refusing to rehire Jeremiah Zermeno, we recognize that Zermeno
used profanity during the meeting at which the Respondent
announced that the staffing agency Ranstad was terminating
App.9a
its contract with the Respondent. However, once the General
Counsel met his initial burden of proof under Wright Line, the
Respondent had to do more than merely articulate a legitimate
reason for its actions against Zermeno in order to meet its
defense burden. See Wright Line, 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
U.S. 393 (1983). Rather, it had to establish that it would have
taken the same actions absent Zermeno’s union activity. See,
e.g., Roure Bertrand Dupont, Inc., 271 NLRB 443, 443 (1984).
We find that the Respondent failed to make this showing.
In affirming the judge’s findings that the Respondent violated
Sec. 8(a)(3) and (1) by discharging, demoting, or otherwise disciplining Ruben Munoz, Alberto Rodriguez, and Pedro
Hernandez, we do not rely on the Respondent’s use of labor consultants to investigate the discriminatees’ alleged misconduct.
Instead, we rely on the other evidence cited by the judge,
including that the Respondent departed from its standard
investigatory practices and failed to conduct a full and fair
investigation of the alleged misconduct, including by failing to
interview the discriminates or their immediate supervisors.
Contrary to our colleague, we affirm the judge’s finding that the
Respondent violated Sec. 8(a)(1) by soliciting employees to revoke
their union authorization cards in March 2018. In determining
whether an employer’s assistance is unlawful, the appropriate
inquiry is “whether the Respondent’s conduct constitutes more
than ministerial aid.” Times-Herald, Inc., 253 NLRB 524
(1980). “[A]n employer may lawfully inform employees of their
right to revoke their authorization cards . . . as long as the
employer makes no attempt to ascertain whether employees
will avail themselves of this right nor offers any assistance, or
otherwise creates a situation where employees would tend to
feel peril in refraining from such revocation.” Mariposa Press,
273 NLRB 528, 529 (1984). In other words, the actions to
inform employees of their right to revoke their authorization
cards must be taken in circumstances devoid of coercion. See,
e.g., Mueller Energy Services, 333 NLRB 262, 262 fn. 1 (2001).
In the present case, the Respondent’s distribution of information letters and sample revocation forms took place while challenges and objections were pending with respect to a second
App.10a
election, which recently culminated with the certification of the
Union’s representative status. Wismettac Asian Foods, Inc., 21–
RC–204759 (unpublished order, Sept. 4, 2020). Consequently,
employees would reasonably view the Respondent’s actions as a
coercive attempt to undermine the results of that election and to
invalidate the Union’s representative status at a time when no
challenge to that status could be raised. Our colleague is correct
that employees have the right to revoke their authorization
cards after the election, although any such revocation cannot
undo the election vote. The issue presented here, however, is
whether an employer can offer unsolicited information about
revocation after a Board election. We find that it cannot do so.
See, e.g., Adair Standish Corp., 290 NLRB 317, 318 (1988), enfd.
in relevant part 912 F.2d 854, 860 (6th Cir. 1990) (finding that
the employer’s notice that directed employees to their
supervisors to obtain forms to revoke their authorization cards
was unlawful where, among other things, the notice was posted
“immediately after the [u]nion’s election victory that the
[r]espondent vehemently opposed”). Further, our colleague is
mistaken in contending that the Respondent could lawfully do
what it did because the election outcome was not finally determined until much later. Its actions reasonably tended to
preempt the electoral process and prospectively interfere with
the Union’s customary irrebuttable status as unit employees’
exclusive bargaining representative for a year following certification. Moreover, if the final result had been a vote against
union representation, the need to provide information about
revocation of union authorization cards would be moot.
Member Emanuel would reverse the judge’s finding that the
Respondent violated Sec. 8(a)(1) by informing employees of their
right to revoke their union authorization cards and providing
employees with sample revocation forms. An employer may lawfully inform employees of their right to revoke their authorization cards, even where employees have not solicited such
information, as long as the employer makes no attempt to
ascertain whether employees will avail themselves of this right
nor offers any assistance or otherwise creates a situation in
which employees would tend to feel peril in refraining from
such revocation. R. L. White Co., 262 NLRB 575, 576 (1982).
Here, there is no evidence that the Respondent attempted to
App.11a
ascertain whether employees revoked their authorization cards.
Nor is there any evidence that the Respondent threatened or
coerced employees to revoke their cards. Moreover, the aid
rendered by the Respondent, supplying information and sample
revocation forms, constituted mere ministerial assistance. See,
e.g., Ernst Home Centers, Inc., 308 NLRB 848, 848 (1992);
Mariposa Press, supra, 273 NLRB at 529–530. Member
Emanuel recognizes that the Respondent committed other
unfair labor practices. However, these violations, while serious,
did not create an atmosphere where employees would tend to
feel peril in refraining from revoking their authorization cards.
There is no link between the violations and the card signing
process, and most of the violations were remote in time. Furthermore, in its letter informing employees of their right to
revoke their authorization cards, the Respondent assured
employees that the decision was their “individual choice” and
that there would be “no adverse job consequences” whether or
not they revoked their cards. See Mariposa Press, supra, 273
NLRB at 530. See also AdvancePierre Foods, Inc., 366 NLRB
No. 133, slip op. at 4 fn. 9 (2018) (Member Emanuel, dissenting
in part), enfd. 966 F.3d 813 (D.C. Cir. 2020).
Unlike his colleagues, Member Emanuel would not find the
Respondent’s conduct unlawful based on its timing, shortly
after the second election. Under Sec. 7, the employees retained
the right to revoke their authorization cards after the election
and the Respondent did no more than truthfully inform them of
that right using language that was factually and legally accurate,
in response to the employees’ inquiries. At the time the Respondent did so, moreover, the outcome of the election was unknown. There were pending objections and 54 determinative
challenged ballots. The objections and challenges were not
resolved, and the Union’s representative status was not determined, until more than 2 years after the Respondent apprised
the employees of their right to revoke their authorization cards.
In these circumstances, Member Emanuel does not agree with
his colleagues that employees would reasonably view the Respondent’s actions “as a coercive attempt to undermine the results
of that election and to invalidate the Union’s representative
status at a time when no challenge to that status could be
raised.” The majority’s reliance on Adair, supra, 290 NLRB at
App.12a
conclusions and to adopt the recommended Order as
modified and set forth in full below.3
The complaint alleged, and the judge found, that
the Respondent violated Section 8(a)(1) of the Act by
issuing Rolando Lopez a verbal counseling on December 5, 2017. In so finding, the judge relied on the
four-factor Atlantic Steel4 test in concluding that the
Respondent failed to show that Lopez lost the Act’s
protection when he voiced employees’ concerns
during a safety meeting. However, after the issuance
318, is misplaced. In Adair, the Board relied on two factors that
are not present in this case. First, the Board found that the
employer “put[ ] employees ‘in the limelight and on the spot’ in
a manner inconsistent with their basic Section 7 right freely to
choose whether to engage in or refrain from union activities” by
directing them to their supervisors to request revocation forms.
Id. Second, the Board found that the coercive impact of the
employer’s conduct “was not mitigated by any employer
assurances against reprisals for failing to request a form.” Id.
In Member Emanuel’s view, these factual differences provide
significant grounds for distinguishing Adair from the present case.
Accordingly, Member Emanuel would dismiss this allegation of
the complaint.
3 The General Counsel’s limited cross-exceptions noted certain
inadvertent errors in the judge’s conclusions of law, remedy and
recommended order. We correct these inadvertent errors, which
do not affect the disposition of this case.
We have amended the judge’s conclusions of law consistent with
our findings herein. We have also amended the remedy and
modified the judge’s recommended Order consistent with our
legal conclusions herein, to conform to the Board’s standard
remedial language, and in accordance with our recent decision
in Danbury Ambulance Service, Inc., 369 NLRB No. 68 (2020).
We have substituted a new notice to conform to the Order as
modified.
4 Atlantic Steel Co., 245 NLRB 814, 816 (1979).
App.13a
of the judge’s decision, the Board decided General
Motors LLC, 369 NLRB No. 127 (2020). There, the
Board held that it would no longer apply the fourfactor Atlantic Steel test to determine whether
employers have unlawfully discharged or otherwise
disciplined employees who allegedly engaged in
abusive conduct in connection with activity protected
by Section 7 of the Act. The Board held that it will
now analyze these cases under the Board’s Wright
Line standard, and it decided to apply the standard
retroactively to all pending cases. Because the parties
have not had an opportunity to address how Wright
Line applies to this Section 8(a)(1) allegation, we will
sever and remand this allegation (set forth in paragraph 7 of the complaint) to the judge for further proceedings consistent with this decision, including
reopening the record, if necessary, to allow the
parties to introduce evidence relevant to an analysis
of the allegation under Wright Line.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for paragraph 2 of
the judge’s conclusions of law.
By disciplining, demoting and changing the
work shift of Ruben Munoz, disciplining,
suspending and terminating Alberto Rodriguez, terminating Pedro Hernandez, and
refusing to rehire and refusing to consider
for rehire Pedro Hernandez, Fanor Zamora,
and Jeremiah Zermeno, the Respondent has
engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act.
2. Delete paragraphs 4–6 of the judge’s conclusions
of law.
App.14a
AMENDED REMEDY
Having found that the Respondent engaged in
certain unfair labor practices, we shall order it to
cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent discriminatorily
issued Ruben Munoz a written warning, demoted
him, and changed his shift, we shall order the Respondent to rescind the unlawful warning, to remove
from its files all references to these unlawful actions,
and to notify Munoz in writing that this has been
done and that the discipline, demotion, and shift change
will not be used against him in any way. The Respondent shall offer Munoz full reinstatement to his
former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously
enjoyed and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimination against him in the manner described below
regarding backpay.
Having found that the Respondent discriminatorily terminated Pedro Hernandez, we shall order
the Respondent to remove from its files all reference
to his termination and notify him in writing that this
has been done and the termination will not be used
against him in any way. In addition, we shall order
the Respondent to make him whole for any loss of
earnings and other benefits suffered as a result of his
termination in the manner described below regarding
backpay. However, because we will order the Respondent to offer Hernandez instatement to remedy
its unlawful refusal to rehire him, we shall omit as
App.15a
duplicative a reinstatement remedy for Hernandez’s
discharge.
Having found that the Respondent discriminatorily issued Alberto Rodriguez a written warning and
suspended and terminated him, we shall order the
Respondent to rescind the warning, to remove from its
files all references to the unlawful discipline, suspension, and termination, and to notify Rodriguez in writing that this has been done and that the discipline,
suspension, and termination will not be used against
him in any way. The Respondent shall offer him full
reinstatement to his former job, or if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or
privileges previously enjoyed, and make him whole
for any loss of earnings and other benefits suffered as
a result of the discrimination against him in the
manner described below regarding backpay.
Having found that the Respondent refused to
rehire and consider for rehire Pedro Hernandez, Fanor
Zamora, and Jeremiah Zermeno, we shall order the
Respondent to remove from its files all references to
the refusal to rehire and consider for rehire and
notify them in writing that this has been done and
that the refusal to rehire and consider for rehire will
not be used against them in any way. These individuals are entitled to the remedy for unlawful refusal
to rehire—instatement and backpay—which subsumes
the remedy for the Respondent’s unlawful refusal to
consider them for rehire. Jobsite Staffing, 340 NLRB
332, 333 (2003). The Respondent shall offer them full
instatement in the positions for which they would
have been rehired absent the Respondent’s unlawful
discrimination or, if those jobs no longer exist, to
App.16a
substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges
they would have enjoyed, discharging, if necessary,
any employees hired in their place. The Respondent
shall make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination against them in the manner described below
regarding backpay.
Backpay for Pedro Hernandez, Alberto Rodriguez,
Fanor Zamora, and Jeremiah Zermeno shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed
in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010). Additionally, the Respondent shall
be required to compensate Pedro Hernandez, Alberto
Rodriguez, Fanor Zamora, and Jeremiah Zermeno for
the adverse tax consequences, if any, of receiving lumpsum backpay awards, and to file with the Regional
Director for Region 21, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards
to the appropriate calendar years for each employee.
AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016).
In accordance with King Soopers, Inc., 364 NLRB
No. 93 (2016), enfd. 859 F.3d 23 (D.C. Cir. 2017), the
Respondent shall also compensate Pedro Hernandez,
Alberto Rodriguez, Fanor Zamora, and Jeremiah Zermeno for their search-for-work and interim employment expenses regardless of whether those expenses
exceed interim earnings. Search-for-work and interim
employment expenses shall be calculated separately
from taxable net backpay, with interest at the rate
App.17a
prescribed in New Horizons, supra, compounded daily
as prescribed in Kentucky River Medical Center, supra.
Backpay for Ruben Munoz shall be computed in
accordance with Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with
interest as prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical
Center, supra. In addition, we shall order the Respondent to compensate Ruben Munoz for any adverse
tax consequences of receiving a lump-sum backpay
award, and file with the Regional Director for Region
21, within 21 days of the date the amount of backpay
is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate
calendar year. AdvoServ of New Jersey, Inc., supra.
We agree with the judge that a notice-reading
remedy is warranted in the circumstances here. We
shall accordingly order the Respondent to hold a
meeting or meetings during working hours at its
Santa Fe Springs facility, scheduled to have the
widest possible attendance, at which the attached
notice marked “Appendix” shall be read to employees
in English and in Spanish by a high-ranking responsible management official of the Respondent in the
presence of a Board agent and a union representative
if the Region or the Union so desires, or, at the Respondent’s option, by a Board agent in the presence
of a high-ranking responsible management official
and, if the Union so desires, a union representative.5
5 In the absence of exceptions, Member Emanuel affirms the
notice reading remedy in this case.
App.18a
ORDER
The National Labor Relations Board orders that
the Respondent, Wismettac Asian Foods, Inc., Santa
Fe Springs, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Promising employees better benefits and
improved terms and conditions of employment
if they reject the Union as their bargaining
representative.
(b) Promising to give employees back their
bonuses and retroactive pay if they reject the
Union as their bargaining representative.
(c) Soliciting employees to revoke their union
authorization cards.
(d) Disciplining, demoting, suspending, terminating, and/or changing the work shift of
employees because of their support for and
activities on behalf of the Union.
(e) Refusing to consider for rehire or refusing
to rehire employees because of their support
for and activities on behalf of the Union.
(f)
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 employees Ruben Munoz and Alberto
Rodriguez full reinstatement to their former
App.19a
jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
(b) Within 14 days from the date of this Order,
offer employees Pedro Hernandez, Fanor
Zamora, and Jeremiah Zermeno full instatement in the positions for which they applied,
or if those positions no longer exist, in substantially equivalent positions, without prejudice to their seniority or any other rights
or privileges they would have enjoyed, discharging if necessary any employees hired
in their place.
(c) Make employees Ruben Munoz, Pedro Hernandez, Alberto Rodriguez, Fanor Zamora,
and Jeremiah Zermeno whole for any loss of
earnings and other benefits suffered as a
result of the discrimination against them in
the manner set forth in the amended remedy
section of this decision.
(d) Compensate Ruben Munoz, Pedro Hernandez, Alberto Rodriguez, Fanor Zamora, and
Jeremiah Zermeno for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional
Director for Region 21, within 21 days of the
date the amount of backpay is fixed, either
by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar years for each employee.
App.20a
(e) Within 14 days from the date of this Order,
rescind the unlawful written warnings issued
to Ruben Munoz and Alberto Rodriguez.
(f)
Within 14 days from the date of this Order,
remove from its files any reference to the
written warning, demotion, and change in
work shift of Ruben Munoz; the unlawful
discharge of Pedro Hernandez; the unlawful
refusals to rehire Pedro Hernandez, Fanor
Zamora, and Jeremiah Zermeno; and the
written warning, suspension, and discharge
of Alberto Rodriguez, and within 3 days
thereafter, notify these employees in writing that this has been done and that the
discharges, written warnings, demotion,
change in work shift, and suspension will
not be used against them in any way.
(g) 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.
(h) Post at its facility in Santa Fe Springs, California, copies of the attached notice marked
“Appendix” in both English and Spanish.
Copies of the notice, on forms provided by
the Regional Director for Region 21, after
being signed by the Respondent’s authorized
App.21a
representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all
places where notices to employees are
customarily posted. In addition to physical
posting of paper notices, the notices shall be
distributed electronically, such as by email,
posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily communicates with its
employees by such means. Reasonable steps
shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or
covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the
notice to all current employees and former
employees employed by the Respondent at
any time since September 8, 2017.
(i)
Hold a meeting or meetings during working
hours at its Santa Fe Springs facility, scheduled to ensure the widest possible attendance
of employees, at which the attached notice
will be read to the employees in English and
in Spanish by a high-ranking responsible
management official of the Respondent in
the presence of a Board agent and a union
representative or, at the Respondent’s option,
by a Board agent in the presence of a highranking responsible management official of
App.22a
the Respondent and, if the Union so desires,
a union representative.6
(j)
Within 21 days after service by the Region,
file with the Regional Director for Region 21
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 allegation
set forth in paragraph 7 of the complaint that the
Respondent violated Section 8(a)(1) by issuing Rolando
Lopez a verbal counseling record on December 5, 2017,
is severed and remanded to Administrative Law
Judge Eleanor Laws for the purpose of reopening the
record, if necessary, and preparing a supplemental
decision addressing the allegation under the Board’s
Wright Line standard, setting forth credibility resolutions, findings of fact, conclusions of law, and a
6 If the facility involved in these proceedings is open and staffed
by a substantial complement of employees, the notices must be
posted and read within 14 days after service by the Region. If
the facility involved in these proceedings is closed due to the
Coronavirus Disease 2019 (COVID-19) pandemic, the notices
must be posted and read within 14 days after the facility reopens
and a substantial complement of employees have returned to
work, and the notices may not be posted or read until a substantial complement of employees have returned to work. Any
delay in the physical posting of the paper notices also applies to
the electronic distribution of the notice if the Respondent
customarily communicates with its employees by electronic
means. If this Order is enforced by a judgment of a United
States court of appeals, the words in the notice reading “Posted
by Order of the National Labor Relations Board” shall read
“Posted Pursuant to a Judgment of the United States Court of
Appeals Enforcing an Order of the National Labor Relations
Board.”
App.23a
recommended Order. Copies of the supplemental decision shall be served on all parties, after which the
provisions of Section 102.46 of the Board’s Rules and
Regulations shall be applicable.
John F. Ring, Chairman
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL)
Dated, Washington, D.C. October 14, 2020
App.24a
NOTICE TO EMPLOYEES POSTED
BY ORDER OF THE NATIONAL
LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
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 promise employees benefits and
improved terms and conditions of employment if
employees reject the Union as their bargaining
representative.
WE WILL NOT promise to give employees back
their bonuses and retroactive pay if employees reject
the Union as their bargaining representative.
WE WILL NOT solicit employees to revoke their
union authorization cards.
WE WILL NOT discipline, demote, suspend,
terminate, and/or change the work shift of employees
because of their support for and activities on behalf
of the Union.
App.25a
WE WILL NOT refuse to consider for rehire or
refuse to rehire employees because of their support
for and activities on behalf of the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exercise
of the rights listed above.
WE WILL, within 14 days from the date of the
Board’s Order, offer employees Ruben Munoz and
Alberto Rodriguez full reinstatement to their former
jobs, or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or any other rights or privileges previously
enjoyed.
WE WILL, within 14 days from the date of the
Board’s Order, offer employees Pedro Hernandez, Fanor
Zamora, and Jeremiah Zermeno full instatement in the
positions to which they applied, or if those positions
no longer exist, in substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges they would have enjoyed, discharging if
necessary any employees hired in their place.
WE WILL make employees Pedro Hernandez,
Alberto Rodriguez, Fanor Zamora and Jeremiah
Zermeno whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against them, less any net interim earnings, plus
interest, and WE WILL also make Pedro Hernandez,
Alberto Rodriguez, Fanor Zamora and Jeremiah
Zermeno whole for reasonable search-for work and
interim employment expenses, plus interest.
WE WILL make employee Ruben Munoz whole
for any loss of earnings and other benefits suffered as
a result of the discrimination against him, plus interest.
App.26a
WE WILL compensate Ruben Munoz, Pedro
Hernandez, Alberto Rodriguez, Fanor Zamora, and
Jeremiah Zermeno for the adverse tax consequences,
if any, of receiving a lump-sum backpay award, and
WE WILL file with the Regional Director for Region
21, within 21 days of the date the amount of backpay
is fixed, either by agreement or Board Order, a report
allocating the backpay awards to the appropriate
calendar years for each employee.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the written warning, demotion, and change in work
shift of Ruben Munoz; the unlawful discharge of
Pedro Hernandez; the unlawful refusals to rehire
Pedro Hernandez, Fanor Zamora, and Jeremiah
Zermeno; and the written warning, suspension, and
discharge of Alberto Rodriguez, and WE WILL, within
3 days thereafter, notify the employees in writing
that this has been done and that these unlawful actions
will not be used against them in any way.
App.27a
NLRB ADMINISTRATIVE LAW
JUDGE, DECISION AND REPORT ON
CHALLENGES AND OBJECTIONS
(AUGUST 30, 2019)
UNITED STATES OF AMERICA BEFORE THE
NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
________________________
WISMETTAC ASIAN FOODS, INC.
and
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, LOCAL 630
and
ROLANDO LOPEZ
and
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, LOCAL 630
________________________
Cases: 21-CA-207463, 21-CA-208128,
21-CA-209337, 21-CA-213978, 21-CA-219153,
21-CA-212285, 21-RC-204759
Before: Eleanor Laws,
Administrative Law Judge.
ELEANOR LAWS, Administrative Law Judge.
This case was tried in Los Angeles, California, on
several dates between October 2, 2018, and January
App.28a
22, 2019. The General Counsel issued the amended
consolidated complaint for Cases 21–CA–207463, 21–
CA–208128, 21–CA–209337, 21–CA–213978, 21–CA–
212285, and 21–CA–219153, on July 19, 2018, based
on various charges filed by the International
Brotherhood of Teamsters, Local 630 (the Union or
Charging Party). Wismettac Asian Foods, Inc. (the
Respondent, Company, or Employer) filed a timely
answer denying all material allegations. On September
6, 2018, these cases were consolidated for hearing
with Case 21–RC–204759.
The complaint alleges numerous violations of
Sections 8(a)(3) and (1) of the National Labor Relations
Act (the Act) surrounding two elections for representation. Both the Union and the Employer also filed
election objections and challenges to certain ballots.
On the entire record, including my observation
of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel,
the Union, and the Respondent, I make the following
FINDINGS OF FACT
I.
Jurisdiction
The Respondent, a corporation, imports and distributes Asian foods at its facility in Santa Fe Springs,
California. The Respondent admits, and I find, that
it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7). The Union is a
labor organization within the meaning of Section 2(5)
of the Act.
App.29a
II. Alleged Unfair Labor Practices
A. Facts
1. Background and the Respondent’s
operations
Wismettac Asian Foods is a Japanese food distributor. The Company distributes food to restaurants,
grocery stores, and wholesalers. Wismettac has total
of 16 branches in the United States, and three in
Canada. None of Wismettac’s facilities are unionized.
The facility in Santa Fe Springs, California (the Los
Angeles facility), at issue here, has roughly 135 employees, including warehouse workers, drivers, administrative employees, supervisors and managers. National
headquarters for Wismettac resides in offices within
the Los Angeles facility.
Robert Susaki, who lives in Tokyo, owns Wismettac. During the relevant time period, Takayuki Kanai
was the Company’s president and chief executive officer
(CEO). Frank Matheu was the acting deputy general
manager, reporting to Yoshinori Narimoto, the director
of logistics. Matheu, who is based on Orlando, Florida,
oversees 9 of the Respondent’s 16 U.S. facilities. Ronald
Minch was national distribution logistics general
manager.
Human resources (HR) in Los Angeles serves
the entire United States. Hikari Konishi was the HR
manager during the relevant time period. Atsuhi
Fujimoto was the planning and recruiting manager,
and Jinna Baik was the employee relations (ER)
specialist. Wismettac uses temporary agencies to help
with staffing. The agencies Wismettac uses are decided
at the corporate level, but the branch managers are
App.30a
responsible for communicating with those agencies to
fulfill staffing needs.
Anthony Vasquez, sometimes referred to as Jose
Vasquez, was the warehouse supervisor and later the
logistics branch manager, which is also referred to as
the plant manager, at the Los Angeles facility. As
plant manager, Vasquez supervised all warehouse
employees. Vasquez reported to Matheu.
Isidro Garcia was the warehouse assistant manager on the night shift until December 2017.1 Christian
McCormick became the warehouse assistant nightshift
manager on October 16, 2017. McCormick moved to the
1 Garcia has worked at Wismettac since 2005, first as a warehouse worker, then as the freezer supervisor, export associate,
and as assistant warehouse manager for more than 6 years. As
assistant warehouse manager he supervised warehouse employees and some drivers. In later November or early December
2017, asked for a demotion because his wife about to give birth,
and he wanted to spend more time with his family. He was
demoted to headquarters associate, working in the front office.
From December 26, 2017–February 5, 2018, Garcia was suspended
for showing favoritism to employees. This was the only discipline
he received in his 14 years at Wismettac and he did not agree
with it. (Tr. 71–72, 100.)
Abbreviations used in this decision are as follows: “Tr.” for
transcript; “R Exh.” for the Respondent’s exhibit; “GC Exh.” for
the General Counsel’s exhibit; “U Exh.” for the Union’s exhibit;
“GC Br.” for the General Counsel’s brief; “R Br.” for the Respondent’s brief, and “U Br” for the Union’s brief. Although I have
included several citations to the record to highlight particular
testimony or exhibits, I emphasize that my findings and conclusions are based not solely on the evidence specifically cited but
rather are based my review and consideration of the entire
record.
The General Counsel submitted a motion to correct the transcript,
which is hereby granted.
App.31a
day shift in early January 2018, and Gerber Flores
(Ge. Flores) became the nightshift supervisor. Garcia,
McCormick, and Ge. Flores reported to Vasquez. Warehouse workers check and load merchandise, and
assemble, receive, sort, and store merchandise in the
various departments including freezer, deli and dry.2
Drivers load merchandise onto trucks and deliver it
to customers in the Southern California area.
The Los Angeles facility is housed in a single
building. There is a two-story front office where managers and most clerical employees work. The warehouse
and delivery docks for the trucks are down a hallway
from the front office. (R Exh. 4.) Neither drivers nor
warehouse workers have any office space in the front
offices, and they spend no working time in that area.
(U Exh. 1; Tr. 65.) Employees use badges to access
various parts of the facility. Employees who work in
the front office can access the main front offices and
the warehouse entrance with their badges. Drivers
and warehouse workers cannot access the front offices
with their badges. (Tr. 96–97.)
2. The Union and early organizing drive
Wismettac employees contacted the Union in the
Spring of 2017 to explore organizing the warehouse
2 Drivers start between 5:00 and 7:00 a.m., and finish when
their routes are completed. Warehouse employees testified that
warehouse workers had two shifts, a day shift and night shift.
(Tr. 41, 135) while Matheu testified that there were three
shifts, with a first shift starting at around 6:00 a.m., a second,
small shift starting at around 9:00 a.m., and a third, overnight
shift starting at 5:00 p.m. (Tr. 786.) Vasquez testified that
warehouse workers are divided into day and night shifts, with
some assemblers working a shift in between. (Tr. 639–640.)
App.32a
workers and drivers. Lou Villalvazo was the secretarytreasurer and principal officer of the Union. Carlos
Quinonez and Oscar Ruiz were organizers for the
Union assigned to the Wismettac campaign.
The Union organized a committee of about 10–
12 employees (the union committee) in February or
March 2017, and the broader organizing campaign
for drivers and warehouse employees began in April.
Union committee members educated themselves about
their rights and communicated relevant information
about the Union and the organizing drive to their coworkers. The union committee met every couple of
weeks. Committee members included Luis Lopez (L.
Lopez), Rolando Lopez (R. Lopez), Ronald Mena, Thao
Ho, Fanor Zamora, Alberto Rodriguez, John Long,
Yader Alvarado, and Carlos Katayama.
In August 2017, The Union distributed T-shirts
with the Teamsters logo to about 70 employees. Because drivers wear uniforms, they could not wear the
Teamsters T-shirts at work, but instead wore buttons
with the Teamsters logo and the phrase, “Respect is
in a union contract”.3 Vasquez observed some employees wore the T-shirts almost every day, and others
wore them on Fridays. (Tr. 650.)
3. Request for voluntary recognition
The morning of August 21, 2017, a delegation of
about 60 employees, accompanied by Quinonez and
Villalvazo, went to Nishimoto’s office to request
union recognition. The employees wore union T-shirts
3 The Union distributed buttons to 28 of Wismettac’s 32 drivers.
App.33a
and sang union chants.4 They approached Narimoto
with authorization cards and Villalvazo asked him to
acknowledge the Union and negotiate a contract.
Minch intervened, declined to sign the paperwork
acknowledging the Union, told Villalvazo he needed
to consult with their legal counsel, and asked them
to leave. The employees walked back to the warehouse along with Quinonez and Villalvazo. Minch
approached and asked the union officials to leave,
which they did. There were no threats, assaults, or
any other malfeasance associated with the delegation.
(R Exh. 13.) The delegation lasted about 15 minutes.
(Tr. 224, 304–305.)
4. Events leading up to the first election
The Union filed an election petition with the
National Labor Relations Board (the Board) the
afternoon of August 21, 2017. The unit was described
as:
Included: All full-time and part-time regular
drivers class A, B, C and Leads. All fulltime and part-time Warehouse workers and
Leads in all departments (all shipping and
receiving, All Export depts-State, International, dry, cooler, freezer, all forklift drivers,
whse clerks, inventory control, assemblers
/selectors, labelers)
4 There were three chants: The first was a pride chant about
being a Teamster, the next was “No justice, no peace, no union
no peace,” and then “sign it” as they were asking Minch to acknowledge the Union. For ease of reference, the videos on the
flash drive for R Exh. 13 are the same as those uploaded in the
Board’s case management system, Employer videos 1–6, dated
October 12, 2017.
App.34a
Excluded: All other employees, office clericals,
professional employees, guards, supervisors,
and all employment agency workers as
defined in the Act.
(GC Exh. 1(a).)
That same day, the Respondent hired labor consultants Gustavo Flores (G. Flores), Carlos Flores (C.
Flores), Ed Hinkle, and David Acosta, to help persuade
employees not to vote for the Union.5 The Respondent
also hired guards following the delegation and filing
of the petition. The guards, who had visible firearms,
were stationed at the gate at the entrance to the
warehouse and remained in place at the time of the
hearing. (Tr. 1479–1480, 1561, 1701.) They opened the
gate for employees, which was locked following the
delegation. Guards had not been at the facility prior
to the delegation and the filing of the representation
petition. (Tr. 1479–1480, 1560–1561.) Matheu testified
that Narimoto told him employees were frightened and
that was the reason for hiring the security. (Tr. 1701.)
In late August, Narimoto asked Matheu to spend
more time in Los Angeles to fix some operational
problems and assist with the union campaign. Matheu
arrived the Monday after Labor Day, September 5,
2017.6 Matheu’s goal was “to look at the efficiency of the
5 Matheu confirmed the labor consultants were hired to help
keep the Union out, and evidence shows they were initially
hired from August 21, 2017, through September 19, the day of
the first election. (Tr. 885; GC Exh. 55.) LRSI, the firm the labor
consultants work for, primarily specializes in union avoidance.
(Tr. 1060.)
6 The last time he had been to the Los Angeles facility was January 2017. Matheu’s general practice beginning on September 5
App.35a
operation, while at the same time, try and fix some of
the issues the employees were having.” (Tr. 794.)
Specifically, Matheu stated:
[W]hen I first arrived the day after Labor Day,
I got word from upper management, which
is owner, vice president, that they would
support me in anything that operation needed
that we could legally do. For example, I mean,
equipment, obviously, you know, we needed to
buy some. You know, that was cost-involved.
I had the green light to get that done.
(Tr. 807.) Matheu was also concerned with high turnover on the night shift. Matheu met with the labor consultants to learn what behaviors he needed to avoid
in terms of the union campaign. He was told to avoid
“SPIT”: spying, promising, interrogating and threatening employees. (Tr. 794–796.)
The labor consultants met with employees in small
groups, usually about 8–10 employees at a time.
Matheu was at the meetings for support, stating, “If
anybody has a question, relating to the operation, I
would be there to answer them.” (Tr. 806.)
L. Lopez has been a driver for Wismettac for
more11 [sic] years. His brother, R. Lopez, has been a
driver for six years. On September 8, 2017, Matheu
and G. Flores met with L. Lopez and R. Lopez in one
of Wismettac’s conference rooms. Matheu told them
the owner had given him a “green light” to make
improvements in the Company, and he would make
these changes as long as there was not a third party.
was to come to Los Angeles for the week and return home to
Florida for the weekends.
App.36a
When asked he meant by a third party, Matheu
responded that if the Union came in, he could not
make the improvements or changes. G. Flores called
the organizing drive revenge and instructed the
Lopez’ to ask for guarantees from the Union. Matheu
reminded the Lopez’ that the Respondent’s Maryland
facility had rejected the Union, and encouraged them
to do the same. (Tr. 121–122, 343.)
Shortly after the September 8 meeting, L. Lopez
was at the warehouse loading his truck when Matheu
approached him. Matheu asked if L. Lopez needed
help, and L. Lopez said he did not. Matheu then told
L. Lopez to think about giving the Company the
opportunity to make improvements. Matheu said the
owner had given him the power to make changes, he
knew that the Company had taken away the bonuses
and they had not paid the retroactive pay, and he
was going to bring it back. (Tr. 128.)
Yadar Alvarado, a driver who has worked for
Wismettac or 13 years, was a member of the union
committee. On a Monday morning, Matheu approached
Alvarado by the timeclock, and said he had bought
new machines for the employees. Matheu said these
changes were only the beginning, and encouraged
Alvarado to give him more time to make other changes.
He also said he would do what was possible within
his reach to restore bonuses and retro pay. (Tr. 558–
559.)
About seven drivers, including Ronald Mena,
Frank Reyes, Alex Ayala, Augustine Troncoso, Enrique
Medina, Yadar Alvarado, and Jaime Martinez, were
called to a meeting with labor consultant G. Flores
and Matheu in mid-September 2017. G. Flores introduced Matheu, who said he had the green light to
App.37a
make necessary changes, but he needed some time.
Mena asked Matheu if he was willing to sign a legal
document regarding the changes.7 Matheu looked at
G. Flores, and responded that he would not sign a
document. (Tr. 556–557, 394.) Mena replied, “how is
it that you have a green light and you have to consult
with a person who knows nothing about the company
and you are listening to what he says, to not sign
anything that we propose to you. So then, you don’t
have a green light like you say.” (Tr. 395–396).
Matheu, along with Wismettac’s owner, Robert
Susaki, and Narimoto, conducted a series of meetings
with employees on September 15 and 18, 2017. Matheu
prepared talking points for these meetings, which
stated:
1.
My background-Quick pinpoint on how I was
taught respect, dedication to people, and
more importantly, the word of as a man.
2.
When I arrived I was very disappointed.
(We have not done a good job as a company)
3.
I felt your frustrations
4.
No control of both operations and tools needed
to do the job
5.
That hit me personally-because you are my
responsibility, you are my priority as
employees/people
6.
As the one 100% responsible for the operations of this branch.
7 Mena had worked as a driver for about 8 years at the time of
the hearing.
App.38a
7.
There will be changes
8.
I know what is going on here and you will
notice my support
9.
I don’t want 3rd party who does not care
about you or the company.
10. What I saw in the video was disgusting
11. It was disrespectful and cowardly
12. Those are the people you want to represent
you?
13. Let me do my job-you don’t need to pay me
14. Give me the chance to do what I love doingmaking a difference
15. Let’s bring respect and tradition back to the
operation.
16. Proper communication
17. Fix root of problems
18. Bring back appreciation for your efforts
19. I will now have full support from upper
management, they will listen, I will justify,
and will change whatever needs to be
changed to improve work environment, and
give you what you need to get the job done
Now here is Mr. Narimoto.
(GC Exh. 56; Tr. 892.)
Warehouse and office employees attended the
September 15 meetings in the lunchroom. The owner,
Susaki, was present at the meeting, along with managers and supervisors as well as the labor consultants.
Matheu recalled Susaki discussing the struggles the
App.39a
Company went through as it was getting started,
and telling employees they needed to get better, and
they would try to accommodate employees.8 (Tr. 848–
849.) Susaki said he would not allow a third party to
come in, and he would not sign any document from
the Union.9 (Tr. 522.)
Matheu then talked to employees about his values,
stating he came from a strong military background
and family, and was taught to value respect and
truthfulness. He told employees he found the delegation disrespectful and he did not want to deal with
a third party. (Tr. 891–892.) He told them that coming
from 3,000 miles away, he was not going to waste
their time not doing anything, but instead would listen
to employees and fix the things he could legally fix
right away. (Tr. 851.) Warehouse employees Thao Ho,
Jesus De Leon,10 and Fanor Zamora attended this
meeting and recalled Matheu telling the workers
that he would make the changes employees needed.
(Tr. 146, 522, 374.)
On September 18, the Respondent held a meeting
with the drivers in the cafeteria at 5:30 a.m. Susaki,
8 Matheu expressed some uncertainty in his memory, stating in
reference to Susaki’s comments, “Yeah that’s about it. Yeah, I
don’t know much about it.” (Tr. 849.) Susaki did not testify.
9 This testimony was from Thao Ho, who goes by “Tim” and
worked in the warehouse as a stocker on the dayshift. He has
worked for Wismettac for 27 years. (Tr. 516.) Ho was an extremely
credible witness. His demeanor was no-nonsense and he
appeared sincere. This testimony is also unrefuted.
10 De Leon worked as a warehouse employee on the day shift as
a receiver, unloading merchandise and then was in the freezer
department as a picker assembler. He left Wismettac in May
2018. (Tr. 368–369.)
App.40a
Matheu and Narimoto were present for management
The security guards were also present at the meeting.
(Tr. 1562.)11 Susaki distributed a notarized document
stating that nothing would happen to them if Wismettac failed to become a union shop, and stated he
would not allow a third party to control his company.
(Tr. 1520.)
Matheu expressed his belief that the August 21
delegation showed a lack of respect. He reiterated
that he had a green light to make changes as long as
the Union was not elected in. Matheu said he grew
up with the Company, he did not want to share it
with strangers, and told employees to think about
their votes in the union election. Alvarado, R. Lopez,
and L. Lopez recalled Matheu saying he was going to
change things and make it better for the employees
as long as the Union or a third party was not
involved. (Tr. 126–127, 346, 553–556.)
5. The stipulated election agreement and
first election
In the wake of the petition for election, the
parties worked to reach a stipulated agreement. The
Union agreed to the Respondent’s request to include
temporary employees in the Unit. (Tr. 1614–1615.) The
Union also agreed to add 13 employees in four categories, subject to challenge: GPO distribution coordinators, GPO central purchase clerks, logistics office
clerks, and central purchase clerks. (U Exhs. 50–52,
Tr. 1620, 1623, 1629.) The parties signed the stipulated
election agreement on August 30, 2017.
11 This meeting was held in English but translation was offered
through the use of headphones.
App.41a
The first election occurred on September 19 for
the following unit:
INCLUDED: All full-time and regular parttime class A, B, and C drivers, warehouse
clerks, inventory control employees, assemblers/selectors, labelers, forklift drivers,
warehouse employees, and leads in all departments, including the shipping and receiving
department, state department, international
export department, dry department, and
cooler freezer department, and employees in
the job classifications described herein who
are supplied by temporary agencies, employed
by the Employer at its facility currently
located at 13409 Orden Drive, Santa Fe
Springs, California.
EXCLUDED: All other employees, office
clerical employees, professional employees,
managerial employees, guards, and supervisors as defined in the Act.
Others permitted to vote: The parties have
agreed that GPO Distribution Coordinators,
GPO Central Purchase Clerks, central Purchase clerks, and Logistics Office Clerks may
vote in the election but their ballots will be
challenged since their eligibility has not
been resolved. No decision has been made
regarding whether the individuals in these
classifications or groups are included in, or
excluded from, the bargaining unit. The eligibility or inclusion of these individuals will be
resolved, if necessary, following the election.
(R Exh. 17.)
App.42a
The Union prevailed, with 75 votes cast for the
Union, 21 against, 2 void ballots and 31 challenged
ballots. The Respondent refused to sign the tally of
ballots and both the Respondent and the Union filed
objections. (GC Exh. 1(aj); U Exh. 57.)
Shortly after the first election, employees met in
Wismettac’s parking lot to learn about the objections
and how things would proceed. Employees Hernandez,
Zamora, Zermeno, and Munoz were among those present. (Tr. 115, 138, 337–338, 548–549.) Employees L.
Lopez, Zamora, and R. Lopez saw Vasquez, Matheu,
and Narimoto looking out the window of the office
toward the parking lot. Narimoto came out to smoke.
R. Lopez saw Garcia looking out the window, and
Pedro Hernandez saw Vasquez and Garcia looking out
the window. (Tr. 473.) Alvarado saw Garcia, Narimoto,
Vasquez, and Minch. (Tr. 549.) Vasquez saw the
meeting via security camera but could not make out
faces. He was watching the meeting because he
wanted to go home. Jose Romero, a supervisor, watched
the video next to Vasquez and both men left when
the meeting ended without discussion. (Tr. 673–674.)
The first election was set aside due to misconduct
on the part of a Board Agent.
6. Ruben Munoz letter of warning and
demotion
Ruben Munoz has worked for Wismettac for 11
years. He worked in the warehouse on the day shift.
He was promoted to lead of the dry department on
the night shift in April 2017 based on his demonstrated knowledge and skills. As lead, Munoz reported
to Isidro Garcia, the assistant warehouse manager
and night shift supervisor.
App.43a
Munoz started attending union meetings in
August 2017 and wore a union T-shirt on Fridays.
He spoke to other employees about the Union and
was part of the August 21 delegation.
In late September 2017, the Union provided
Munoz with an offer of proof the Respondent had
filed in support of the first election. In the offer of
proof, the Respondent stated Munoz had operated a
forklift in an unsafe manner against employees who
did not support the Union, and otherwise intimidated such employees. (GC Exh. 47.) The offer of
proof specifically mentioned Jose Rosas as a recipient
of Munoz’ intimidation. Munoz spoke to his supervisor, Garcia, about the incident, who denied receiving
any complaints about Munoz. At Garcia’s instruction,
Munoz went to see Human Resources Manager Hikari
Konishi, and expressed concerns that his reputation
was being hurt by the offer of proof. Munoz told
Konishi the accusations were untrue, and that he did
not operate the forklift as part of his duties unless
there was an emergency. (Tr. 419, 434, 446–447.)
Rosas was a known union opponent who regularly
wore an antiunion T-shirt to work. (GC Exh. 47.) He
worked in the freezer department where Ge. Flores
was the lead.12 Rosas wrote a statement about his
complaints regarding Munoz on October 18, 2017.
(GC Exh. 62.). In October, Matheu, along with labor
consultants G. Flores, and C. Flores, met with employee
Walter Vargas, another known Union opponent, and
Rosas at Rosas’ house. (Tr. 854–856. 944.) Vargas
said that Munoz harassed him and he felt afraid to
12 Rosas did not work in the dry department where Munoz was
lead.
App.44a
ask him questions. Vargas also said that Munoz drove
his vehicle aggressively, crashed into employees, and
humiliated employees who did not build pallets to his
standards. (Tr. 854; GC Exh. 59.)
Matheu and G. Flores also met with Oscar Ortiz,
another a known union opponent, outside the facility.
(Tr. 944.) As lead, Munoz had reported Ortiz to management for using obscene and foul language Around
September 2017, Munoz informed their supervisor,
Garcia, that Ortiz told employees he was a “piece of
shit,” “to send me to hell,” “to go fuck my mother,”
and other insults, and he brought witnesses who heard
the comments on one occasion. (Tr. 444, 451–453.)
During the meeting with Matheu and G. Flores, Ortiz
complained to Matheu that Munoz was aggressive with
his direction. (Tr. 456, 857, 907.) Supervisor Garcia
was not involved in either of these meetings. (Tr. 944.)
Ortiz prepared an undated statement relaying his
dissatisfaction with Munoz for a variety of reasons.
Ortiz reported that Munoz said he was faking a back
injury. Ortiz also stated that he had heard coworkers
say Munoz was pushing people to vote for the Union.
(GC Exh. 61.) Vargas also prepared an undated statement, which states, “Ruben asked me what I talked
about with Gustavo and multiple people asked me
what I talked about with him. He is an attorney, he
is not from the company.” (GC Exh. 58.)
Matheu relayed the employee complaints to ER
specialist Baik. (Tr. 859.) On October 23, 2017, Matheu
issued a written warning to Munoz for unsafe operation of company equipment and unprofessional conduct.
Specifically, the warning stated:
App.45a
We received complaints from your colleagues
that you operate your fork lift backward, with
the pointy part in the front.13
Several employees reported that you crashed
into racks and pallets, and drove unsafely
without honks which startled your coworkers.14 You drove aggressively and almost hit
your coworkers. As a result, merchandises fell
off from the rack and your coworkers do not
feel comfortable working around you.
You are spreading a rumor about your coworker’s injury that your coworker made up
his injury.
We received a report from several employees
regarding your antagonistic and aggressive
behavior towards your coworkers. You have
threatened your coworkers by stating that if
they do not follow your order, they are not going
to work here. And you yell at fellow coworkers
and talk down on them, creating a very hostile
workplace.
(GC Exh. 2.) The written warning was signed by
Matheu as supervisor. At the meeting where the discipline was issued, Munoz asked HR Manager Konishi
to show him evidence regarding the allegations, which
she declined to do. (Tr. 432–433.)
13 Matheu admitted this part of the discipline was in error.
(Tr. 947.)
14 No employees were identified other than Rosas, Vargas, and
Ortiz.
App.46a
Matheu said he consulted with Narimoto and
Senior Vice President Toshi Nishikawa and decided
to demote Munoz because his temperament and
character did not fit the lead position. (Tr. 859–860.)
On October 25, 2017, Ruben Munoz was demoted from
his position as nightshift lead assembler, at a pay
rate of $20.55 per hour, to the position of dayshift
assembler, at a pay rate of $18.95 per hour. (GC Exhs.
2, 48; Tr. 436.) Matheu knew Munoz supported the
Union. (Tr. 944.)
Munoz did not know a Wismettac employee named
Jose Rosas. (Tr. 419.) He had not received any prior
discipline in his 11 years with the Company.
7. Termination of temporary contract
employees and re-hiring
On October 24, 2017, Diana Meza, senior branch
manager at the temporary staffing agency Ranstad,
sent Fujimoto a letter notifying him that Ranstad
was terminating its staffing agreement with Wismettac.
She cited the following reason:
Randstad’s termination of the Agreement is due
to Wismettac’s breach of Section 13 (“Independent Relationship”), which provides:
Both parties agree that this Agreement
is not intended to create nor shall be
deemed or construed to create any relationship between the parties other than
that of independent entities contracting
with each other solely for the purpose
of effecting the provisions of this Agreement. Neither the parties hereto, nor
any of their respective employees, shall
App.47a
be construed to be the agent, employer,
employee or representative of the other,
nor will either party have any express
or implied right of authority to assume
or create any obligation or responsibility on behalf of or in the name of the
other party.
Randstad received notice on October 18, 2017
that Wismettac violated this provision on at
least three separate occasions (August 30 2017,
September 12, 2017, and October 11, 2017) by
representing in writing to third parties, including a government agency (the National Labor Relations Board), that Wismettac is the employer of
Randstad’s employees. Wismettac did not notify
or obtain Randstad’s consent prior to making
these submissions.
(GC Exh. 29.) Meza concluded her letter by stating
Ranstad would work with Wismettac to ensure the
employees were on-boarded as Wismettac employees.
That same day, Fujimoto sent an email to all
branch managers informing them that Ranstad had
terminated the staffing agreement with Wismettac.
He stated, “The main reason is because their temps
on assignment were involved in NLRB union voting
that took place in Los Angeles Branch, which they
didn’t authorize.” (GC Exh. 22.) Fujimoto informed
the managers they could either: (1) convert the temporary employees to Wismettac employees, with a
potential conversion fee; (2) roll the employees over
to another temp agency; or (3) end the worker’s
assignment. Fujimoto sent a follow-up email on October 31, notifying the managers that they could either
convert the Ranstad employees to Wismettac employ-
App.48a
ees or end their assignments by or before November
23.
On October 31, Vasquez and Matheu held a
meeting with the employees working through the
Respondent’s contract with Ranstad. He informed
the employees that the contract with Ranstad had
ended, but they could apply to work for Wismettac
directly. (Tr. 148, 477, 591.) The daytime employees
were laid off effective immediately, and the nighttime
employees were permitted to work until the Ranstad
contract ended. Matheu allocated additional staffing
in the afternoon to make sure there were sufficient
employees when the lines came in, and so he decided
to let the morning shift go and retain the afternoon
/evening shift. (Tr. 861–865.)
Wismettac terminated the assignments of the
following warehouse workers employed through Ranstad on October 31: Trammel Age, Henry Garcia,
Pablo Ramirez, Thoeun Kong, Deoun Kong, Phandy
Suon, Pedro Hernandez, Fanor Zamora, and Jeremiah
Zermeno. Christopher Jiminez’ assignment was
terminated on November 21, 2017. Wismettac terminated the assignments of Dwayne Turpin and
Cassandra Massenburg on November 22. The following
individuals continued to work for Wismettac through
a different temporary agency: Van Thang, Khuaih
Shine, Lamar Lomax, Nathaniel Falson, Eduardo
Contreras, Harumi Tomimura, Jamaal Parris, Luis
Guzman, and Samuel Tavares. Aurelio Leon was
converted to a Wismettac employee on December 4,
2017. (GC Exh. 23.)15 Marcus Mack worked continu15 R Exh. 14 purports to be a chart of what happened to the
temporary employees, but the General Counsel was able to
show, through Fujimoto’s testimony, that it was incomplete
App.49a
ously for Wismettac because he was rolled over to Spectrum staffing agency on November 23, and eventually
became a permanent employee. Walter Vargas and
Eric McLoughlin were also rolled over to Horizon
staffing agency on November 23. (GC Exh. 51;
Tr. 1022–1023.)
On November 1, 2017, Fujimoto sent Diana Meza
from Ranstad a list of the dayshift employees whose
assignment had ended the previous day: Trannell
Age, Henry Garcia, Christopher Jimenez, Thoeun
Kong, Deoun Kong, Phandy Suon, Fanor Zamora,
and Jeremiah Zermeno. As discussed more fully below,
he informed her at Pedro Hernandez was being terminated. Fujimoto concluded by saying he would get
back to Meza regarding whose assignments were
ending and who would be converted to a Wismettac
employee. (GC Exh. 45.)
There were 53 positions budgeted for warehouse
employee positions at the beginning of October 2017,
all but 5 of which were filled by the end of the month.
(GC Exh. 5; Tr. 1013.) In November, around 21 temporary employees were hired through staffing agencies, including Horizon and Cornerstone. (Tr. 1020–
1021; GC Exh. 24.) Wismettac hired new temporary
employees in November and December 2017. (Tr. 690,
925.)
8. Pedro Hernandez termination and
failure to re-hire
Pedro Hernandez worked for Wismettac through
Ranstad from June 2017 through October 2017.
(Tr. 1018–1019). It is therefore not considered as reliable evidence.
App.50a
During the relevant time period, he was a forklift driver
on the night shift. Hernandez spoke to employees
about the Union and wore his union T-shirt every
Friday, including after the September 19 election.16
(Tr. 466–467, 503.) He was also at the meeting in the
parking lot following the first election.
After the October 31 meeting, Matheu told Hernandez that his contract was finished, and he no
longer worked for Wismettac. (Tr. 480.) The other
nightshift employees were permitted to work through
the end of the Ranstad contract on November 23.
(Tr. 930; GC Exh. 51.) Matheu did not give Hernandez a reason for his immediate termination other
than the Ranstad agreement ending.17 (Tr. 481, 508.)
Labor consultant G. Flores had told Matheu that
Vargas, a known Union opponent, had alleged Hernandez created a hostile work environment on the
p.m. shift. (Tr. 870.) In October 2017, Matheu, with
G. Flores and C. Flores accompanying him, interviewed Vargas at Rosas’ house. (Tr. 854-856, 898-901,
1045–1048.) This is the same meeting where Munoz’
alleged creation of a hostile environment in the dry
department was discussed. Matheu’s interview notes
regarding what Vargas said state, “called me dumbass”,
“Union will win”, “clapping and calling me dumbass.”
16 Matheu knew Hernandez supported the Union. (Tr. 946.)
17 Matheu testified he told Hernandez the reason for the
termination. I credit Hernandez’ account on this point because
his testimony was more straightforward and as the employee
being let go, the conversation had much more of an impact on
him than on Matheu. In addition, Matheu’s testimony was in
response to a leading question that does not directly reference
the reason Matheu gave for Hernandez’ termination. (Tr. 870–
871.)
App.51a
They also state that Hernandez treated Vargas
abusively, showed discriminatory behavior, was slavelike and abusive, and said he would beat him and
kick his “—”. (GC Exh. 59.) Matheu never spoke to
Hernandez about these accusations. (Tr. 934–935.)
Vargas’ own notes about Hernandez state,
“Pedro the Machinist. He is telling the new people
that if they are going to vote, to vote for the union.
He spends his time conversing with them.” (GC Exh.
58.)
On November 1, Fujimoto informed Meza that
Hernandez’s assignment had ended “due to behavioral/performance issues, as well as operational changes
within his Department.” (GC Exh. 45.) The reason
stated for Hernandez’ termination on a spreadsheet
maintained by Wismettac is “Ended assignment due
to Ranstad terminating service.” (GC Exh. 23.) At
the hearing, Matheu testified Hernandez was terminated for “creating a hostile environment in the
p.m. shift, refusing to help employees, being offensive
to them.” (Tr. 869.)
Hernandez applied directly to Wismettac on
November 1. (GC Exhs. 49–50.) He also applied
through temporary agencies CornerStone and Horizon
but was not hired. On November 1, Marla Orabuena
from Cornerstone emailed Garcia to inform him Hernandez could start at Wismettac the next day. Garcia
responded by email stating, “Can we wait on Pedro
Hernandez. I think he was a stocker of ours that we
just let go of. Can you send information before moving
forward?” (GC Exh. 26.) On November 2, 2017, a
female representative from Cornerstone called Hernandez and told him to hold off on his drug test because
Wismettac did not want him back. (Tr. 488–489.)
App.52a
Hernandez was never disciplined while at Wismettac. (Tr. 494.)
9. Jeremiah Zermeno failure to re-hire
Zermeno worked for Wismettac through Randstad
as an order puller on the day shift from March 2017
through his termination. (Tr. 584-585.) Zermeno attended several union meetings, and spoke to employees
about the Union. He wore a union T-shirt on Fridays
both before and after the election, and wore a union
pin every day starting the week of the election.
(Tr. 587-589.) He also attended the meeting in the
parking lot following the election.
During the October 31 meeting where Matheu
informed him and other employees they were immediately terminated, Zermeno expressed frustration, saying that he could have taken a “fucking job” he was
offered at $18 per hour. (Tr. 659.) As he was leaving
the meeting, Zermeno said to nobody in particular
that this was “bullshit.” (Tr. 593.)
On November 2, 2017, Matheu told Ashley Anagnos from staffing agency CCSI Talent that Wismettac
did not want Zermeno back because of “the manner
in which he left and derogatory comments.” (GC
Exhs. 9, 44.) Zermeno also reached out to CornerStone, with whom he had submitted a previous application, but he was not re-hired. (GC Exh. 28; Tr. 597.)
A woman named Destiny from Cornerstone told Zermeno that she had received an email stating that he
and Hernandez were not welcome to return to work
with Wismettac. (Tr. 598.) Zermeno was written up
once in June or July 2017 for attendance. (Tr. 593–
594.)
App.53a
10. Fanor
Zamora
failure to re-hire
termination
and
Fanor Zamora worked as an order puller or Wismettac through the temporary agency Ranstad from
April 11, 2017 through his termination. He served on
the union committee. Before the first election, Zamora
wore his union T-shirt to work twice After the election,
he wore the union T-shirt every Friday until his
termination. (Tr. 143-144, 165, 168-169.) He was also
at the union meeting in the parking lot following the
first election.
During the October 31 meeting, Zamora told
Matheu he had applied directly with the company a
long time ago, but did not receive a response.
Vasquez told Zamora his application has gotten lost,
but Matheu told him there had been a problem with
his background check. Matheu told Zamora he would
take care of his application. (Tr. 152–153.) Zamora
applied again on November 1. (GC Exh. 6, p. 18.)
Fujimoto received an e-mail on November 3, 2017, from
Annette Jimenez, a human resources coordinator,
regarding Zamora’s third job application, stating:
I just received a call from a temp named
Fanor Zamora who was from Randstad. He
was let go on Tuesday 10/31 since we termed
[sic] our contract with them and mentioned
that he applied for one of the warehouse
positions available but he has not heard
anything yet. Please follow up.
The same day, Fujimoto forwarded the email to Matheu
and labor consultant Hinkle, stating “FYI.” Hinkle
was not involved in the hiring or firing of warehouse
employees. (Tr. 1014–1015; GC Exh. 7.)
App.54a
After he was laid off, Zamora also communicated
with two other temporary agencies that sent employees to Wismettac, Horizon, and Cornerstone. The
person Zamora spoke with from Cornerstone said she
was told Wismettac did not want any of the laid-off
employees to be reemployed. (Tr. 155–156.) A man
from Horizon told Zamora the same thing. (Tr. 157–
158.)
On February 13, 2018, Zamora received the
following response to his third application with Wismettac:
Thank you for applying at Wismettac Asian
Foods Inc. At this time, we have selected
those applicants whose skills and qualifications more closely match the requirements
of our current vacancy to continue on in the
selection process. Thank you for your interest
in employment at Wismettac Asian Foods,
Inc. We wish you every success in your job
search.
(GC Exh. 19.) Zamora was not disciplined during his
time at Ranstad. (Tr. 150.)
11. The lawsuit and CEO letter
On November 29, 2017, Wismettac filed a lawsuit
in the Superior Court of California for the County of
Los Angeles, alleging creation of a private nuisance,
violation of California trespass law, and violation of
the California Business and Professions Code, in connection with the August 21 delegation. (R Exh. 89.)
On December 1, CEO Kanai sent a letter to employees updating them on unionization attempts in
Los Angeles and Maryland. The letter recapped that
App.55a
the Maryland employees rejected the Teamsters in in
early September, and the election in Los Angeles was
set aside “due to the misconduct of the teamsters
local 630 and the National Labor Relations Board.”
(U Exh. 44, emphasis in original). The letter stated
that company filed a “Formal” lawsuit against the
Union and Villalvazo for trespassing on company
property in August. The letter next stated that Wismettac would legally resist unionization, and that
“We do not feel that any of our employees should be
forced to pay a union that can promise anything, but
Guarantee absolutely nothing but dues, fines and
assessments to its members.”18 Following the letter,
employees were scared they were going to get sued.
(Tr. 1598.)
12. Rolando Lopez counseling
Rolando Lopez has worked for Wismettac for 9
years, and as a driver for the last 7. In late November 2017, Vasquez and Romero approached driver
Augustine Troncoso, and Vasquez told him he needed
to fit all his merchandise into his truck. R. Lopez and
his coworker Yader Alvarado then helped Troncoso
load his truck. R. Lopez told Troncoso that if he was
uncomfortable with the merchandise because it was
overweight, he was not required to take it. Alvarado
told Troncoso to worry about his safety first, not the
client receiving his merchandise. (Tr. 348–350, 561;
560–563.)
18 The Regional Director for Region 21 dismissed a charge the
Union had filed alleging the memo about the lawsuit violated
Section 8(a)(1) of the Act.
App.56a
Matheu conducted a safety meeting with the
drivers on December 4. Romero, Vasquez, and Susan
Sands, the new assistant operations manager, were
also present.19 (Tr. 879.) One purpose of the meeting
was to inform drivers how to use the correct codes
when filling out paperwork. Matheu started the
meeting the same way he started all safety meetings
with drivers, by reviewing accidents that had occurred
at all branches the previous week. (Tr. 880.) He
discussed a safety incident at another company, where
some merchandise had fallen out of a truck. R. Lopez
asked if he could speak, and relayed his belief that
Vasquez had forced Troncoso to drive an overweight
truck. R. Lopez recounted an incident when he was
issued a ticket in 2016 after being forced to drive an
overweight truck. After some back-and-forth, with
Matheu telling R. Lopez to lower his voice, Romero
told R. Lopez there was no reason to bring up an
individual case during a safety meeting. Romero said
the problem with Troncoso’s truck was airbrakes. A
driver named Giovani replied that under the laws of
California, the problem is not the airbrakes, the
problem is the weight and that the company was
forcing the drivers to take the merchandise that was
overweight.20 (Tr. 353–354, 565–566.) Other drivers
also spoke at the meeting. (Tr. 623.) R. Lopez did not
use any profanity, make threats, or touch anyone.
(Tr. 672–673.)
On December 5, 2017, Vasquez and Romero called
R. Lopez to a meeting and counseled him for his
19 Sands had started at Wismettac on October 8, 2017.
20 Vasquez could not remember if Mr. Giovani made these
comments. (Tr. 673.)
App.57a
comments at the meeting. Romero faulted R. Lopez
for bringing up an individual case during a safety
meeting. The counseling record stated R. Lopez was
using angry and hostile tones, he made comments
about issues other drivers had that were not related
to the meeting, and Sands was frightened by him.21
(GC Exh. 3.)
After the counseling had occurred, Baik contacted
Sands to investigate. Sands met with Baik on December
8, and she prepared a statement that she turned in
on December 11. (Tr. 624.) R. Lopez’ comments at the
meeting had been in Spanish, and Sands did not
understand him. Sands described R. Lopez as postured
“with his arms crossed in front of him, slightly leaning
back.” She perceived his tone of voice as hostile
toward Matheu. Sands testified that R. Lopez ceased
speaking after Matheu addressed him. (Tr. 615–616.)
Sands described R. Lopez as aggressive, sarcastic,
and hostile, noting that he was rolling his eyes and
smacking his lips. She wrote:
I’ve invested a great deal of thought and
consideration into the outcome of this meeting. While I want to emphasize that one of the
issues described above would not constitute
insubordination when viewed singularly, the
cumulative effect demonstrates his inability
or unwillingness to work as a team, follow
protocol, respect for his superiors and the
chain of command.
21 R. Lopez did not receive the paperwork about the verbal
counseling record at the meeting, and did not know it existed
until he requested his personnel file at a later time.
App.58a
She concluded by saying she was “personally distraught
by this drivers’ (sic) unprofessional behavior.” (R
Exh. 3.)
13. Alberto Rodriguez
termination
discipline
and
a. December 21, 2017 written warning
Alberto Rodriguez started at Wismettac in 2015
through the temporary staffing agency Horizon and
became a permanent employee on March 27, 2017.
(GC Exh. 33.) He first worked as an order selector,
and later became a forklift driver. He worked the
night shift and his supervisors were Garcia and Hector
Ramundo. Prior to the first election, Rodriguez spoke
with employees about the Union, visited their homes,
and collected authorization cards. He also regularly
wore a union T-shirt. He was one of the employees in
the front during the August 21 delegation.
On June 13, 2017, Rodriguez received a verbal
counseling record for being repeatedly tardy between
April and June. He received another verbal counseling record for tardiness on June 22. (GC Exhs. 39–
40.) Vasquez issued a verbal counseling record to
Rodriguez on December 11, 2017, for making a derogatory remark during the meeting about an employee
who had made a mistake. (GC Exh. 41; Tr. 661–662.)
Matheu issued Rodriguez a written warning on
December 21, 2017, for unprofessional conduct. Specifically, the warning stated:
We received complaints from your colleagues
that you reject requests from your team mem-
App.59a
bers to bring down the merchandise from the
top of the shelves.
Several employees addressed their concern
about you watching and monitoring your
colleagues while they are working and that
your behavior makes others feel very
uncomfortable to work around you.
We received a report from several employees
regarding your antagonistic behavior towards
your coworkers. You have called your
colleague “idiot” and “stupid”. You yelled and
talked down on others, creating a very hostile
workplace.
(GC Exh. 34.) In addition to receiving the warning,
Rodriguez was no longer permitted to drive the
forklift and was placed back into the order selector
position.22 Management did not tell Rodriguez who
made the complaints. Matheu learned of the complaints from McCormick and Ge. Flores, who at the
time was a lead warehouse worker in the freezer
department. Matheu did not speak to the unnamed
employees who complained about Rodriguez and said
it was HR’s investigation.23 (Tr. 938–939.)
Vasquez and Romero were present with Matheu
when he issued Rodriguez the discipline. Rodriguez’
supervisor, Garcia, was not present and was not
22 Rodriguez had complained to Vasquez that he thought Ortiz
was harassing him. Despite Rodriguez being placed back into
the order selector position, he continued to operate the forklift
at management’s direction. (Tr. 232–234, 696.)
23 There is no testimony or documentary evidence that HR
conducted an investigation.
App.60a
aware of the discipline. Rodriguez said it was not true
that he refused to help his coworkers, and believed
that Oscar Ortiz was making it up because he was
upset Rodriguez had gotten the forklift driver position.
Rodriguez said he and coworkers regularly call each
other names in a mutually joking manner. (Tr. 229.)
On January 5, 2018, Ge. Flores sent an email to
Matheu, G. Flores, and Hikari, stating:
This e-mail is to inform you of some occurrences
in the warehouse related to Mr. Alberto Rodriguez,
regarding some recent complaints from several
employees over the last couple weeks, especially
this week.
Early this week (Tuesday night) at around
7:45pm, Employee Jimmy Yato approached me
and told me that earlier that day Mr. Rodriguez
had been inside the restroom for half an hour
and he thought that was not right because Mr.
Rodriguez often did that. From what Jimmy
Yato said, Jose Avila also witnessed this and
made a comment to Jimmy regarding Mr.
Rodriguez about this issue.
I infirmed (sic) Mr. Mccormick and Mr. Vasquez,
Mr. Vasquez checked the cameras and found Mr.
Rodriguez had been in the restroom for 20
minutes. This Thursday night Jimmy called me
again at 9:15 PM and told me Mr. Rodriguez
was in the restroom again and had been there
for half an hour. By 9:25PM Mr. Rodriguez
passed by the office and talked to Mr. Mccormick
saying he was sick and therefor had to go home
early. Again, this was witnessed by Jose Avila
and few other employees who l do not have their
App.61a
names. However, at that time Daniel Gonzalez
approached me and asked me why had the
bathroom door looked (sic) for so long and other
employees were around listening attentively and
laughed.
At this time it all concerns me, because l am
seeing a pattern where the warehouse employees
are becoming more concerned of Mr. Rodriguez
than their own duties.
Therefore, being that, this is the second time
this happened this week, l wanted to bring this
to your attention.
(R Exh. 10.) On January 7, McCormick sent an email
to Matheu, Hikari, and G. Flores, with Vasquez cc’d,
relating a complaint from Joes Avila that Rodriguez
had spent a lot of time in the bathroom. (R Exh. 10.)
Also on January 7, Ge. Flores sent an email to McCormick relating what employee Jose Avila had told
him, “Alberto Rodriguez approached him and told
him that he felt pressured from most employees and
he figured it was because he was pro union but his
lawyer was going to come to the LA facility on
Monday.” (GC Exh. 53.)
On January 8, Matheu sent Narimoto a memo
documenting the reasons he wanted to promote
Rosas and Kirby to lead positions. (R Exh. 44.) Rosas
and Kirby both took over as leads on January 8,
2018.24 (R Exhs. 43–44; Tr. 1196, 1198.) On January
9, McCormick held a meeting to tell employees Rosas
would become the freezer lead and Kirby would
24 Rosas was hired on May 15, 2017. Kirby was hired on March
6, 2017.
App.62a
become the dry lead—Munoz’ former position. McCormick said he was moving to the day shift, and he
announced Ge. Flores, who had been freezer lead, as
the new nightshift supervisor. (U Exh. 2; Tr. 1370–
1373.) Luis Lopez perceived that Kirby and Rosas
were supervisors because they walked around with
laptops, no longer wore freezer gear, and received
money from drivers. (Tr. In Luis Lopez’ experience,
only the supervisors and managers accepted money
from drivers. (Tr. 1444–1454.) Rolando Lopez thought
Kirby was introduced as a supervisor. (Tr. 1565.)
On January 10, 2018, McCormick sent an email
to Matheu and G. Flores regarding Rodriguez. (GC
Exh. 52.) The email started out by stating:
I wanted to bring to your attention a complaint that Marcus Mack25 brought to
Gerber and I. Tonight, at roughly 10:30 pm
or so, Marcus came into the office and specifically said, “we have a poison pill on our
hands.” Marcus at that point went into
detail regarding his comment stating that he
heard Alberto Rodriguez complaining about
the recent management and leadership
changes that are taking place.
The email went on to state:
Marcus approached Gerber and I in the
office and said Alberto was heard making
some commotion stating that he was going
to call the Union and that he did not like or
approve of the leadership changes that are
25 Mack was a known antiunion employee. He worked for Wismettac for nine months, as an order picker and a machinist.
App.63a
taking place. Marcus seemed a little upset
regarding what had happened, when he was
talking to us. Because Marcus brought this
to our attention, later that night with Gerber,
I went out to talk with Alberto Rodriguez.
At that time, I explained to Alberto that
someone approached us complaining that
you were talking about the Union. I told
Alberto that it was ok to talk about the
Union on your breaks and lunch, but during
work time I needed him to work. Alberto
specifically said, oh no, I know that. I was
talking about the Union on my break time.
So I thanked him and said, ok. From there,
Gerber and I went back to the Office and
Alberto went back to assembling.
A Little later that night, when I saw Marcus
again. I asked Marcus, “could you tell me
when you heard Alberto talking about the
Union?” Marcus said, yes, it was twice. The
first time it happened was right after the
meeting when everyone was going back to
work. People were still crowded around the
meeting area and that was the first time
Marcus said he heard Alberto complaining
about the leadership changes and the fact
he was going to call the Union. Marcus then
said, later that night on the whse floor when
he was working, is the second time that he
heard Alberto complaining in a rather load
(sic) voice concerning the leadership changes
and about calling the Union. At this point,
Marcus told us there were others around
and several of our workers had heard him.
App.64a
The one name that Marcus mentioned that
was close by at that time when Alberto was
making this commotion as Marcus put it,
was Ericberto Munoz.
(GC Exh. 52.)
An incident occurred between Rodriguez and
Mack on January 11, 2018. Rodriguez and Mack
were on break in the same area, and Rodriguez was
playing music that offended Mack. At the time, the
song streaming from Rodriguez’s music app was by
the rapper $tupid Young. Mack asked McCormick to
intervene because the song’s lyrics included the word
“nigger.”26 Tr. 820.) When McCormick asked Rodriguez
to turn the music off, Rodriguez said he was on his
break and could play whatever music he wanted. McCormick asked Rodriguez a second time to turn the
music off. Rodriguez then turned the music off and
McCormick left. (Tr. 822; R Exhs. 11, 12.)
After McCormick left, Rodriguez made a “clicking”
sound with his teeth. According to Rodriguez, Mack
told him to “shut the fuck up” and threatened to
“kick his ass.”27 After McCormick left, Rodriguez
continued to play the music and would turn it up
26 Rodriguez could not recall whether the word “nigger” was
part of the lyrics, but Mack’s memory was definite, and his testimony is therefore credited.
27 Rodriguez’
contemporaneous
statement
says
Mack
threatened to “kick his ass”; In his testimony, Rodriguez said
Mack threatened to “fuck him up.” (Tr. 246; GC Exh. 37.)
App.65a
during a racist hook, and Mack left the area within a
minute.28 (GC Exh. 37; Tr. 245–249, 823.)
Rodriguez reported Mack’s statements to McCormick and said he wanted to file a police report
and an internal report because he felt threatened by
Mack.29 McCormick told Rodriguez to write a statement. (Tr. 251.)
On January 12, McCormick sent an email to
Matheu and Narimoto, with Konishi, Vasquez and G.
Flores cc’d, relaying the incident between Mack and
Rodriguez, stating:
As I was approaching the water fountain on
my way to the hallway, Marcus Mack was
sitting against the wall roughly a quarter way
to the exit door near the ramp. Alberto
Rodriguez was sitting two chairs away from
Marcus, closer to the exit door. As I
approached Marcus, Marcus motioned towards Alberto and asked is that appropriate? I was in a hurry, so I was moving
rather fast so I didn’t understand what
Marcus was talking about at first. So I
asked, is what appropriate? Marcus replied,
that music he is listening to. Marcus said,
every other word is the “N” word. At that
28 Mack’s January 11, 2018 statement says that “ever other
word was nigga” and that Rodriguez turned the music up when
the song said “fuck that nigga.” (GC Exh. 12.) This strikes me
as an embellishment, particularly considering McCormick said
he would consult with HR to determine if the song was
offensive, as discussed below.
29 Rodriguez is 5’4” tall and weighs 140 pounds. Mack is 6’1”
tall and weighs 240 pounds. (Tr. 250–251, 844.)
App.66a
moment, I could hear rap music playing
from Alberto’s cellphone. I took a step or
two towards Alberto and asked him “could
you turn your music off, or listen to it outside in private? It is offensive to Marcus!”
At that time, Alberto replied, “I am on my
break, I can do whatever I want because it’s
my break.” Alberto also replied, “I don’t
think it’s offensive!” At that time, I am not
exactly sure what question Alberto asked me
specifically, however, I remember answering
him stating “I’ll find out exactly what is
offensive with HR!” I then asked Alberto a
second time stating “please, can you turn
that down?” This time Alberto turned down
the volume on his phone and you were not
able to hear it.
...
After talking with Abraham for a second, I
headed back downstairs. As I was approaching the bathroom and heading towards the
office, Marcus Mack motioned towards Alberto
again and said “he did it again.” I walked
into the office and Marcus followed me in
and asked what form do I fill out before I
had a chance to say anything. At this point,
the office was working on fixing the printer/
copier so I told Marcus, “give me a second
and I’ll get with you in a second.” Once
everything calmed down, I printed out a
witness statement and took Marcus to a
private room and asked him to fill out the
witness statement.
App.67a
(R Exh. 11.) This same email also conveyed Rodriguez’
report of feeling threatened by Mack, Rodriguez’ desire
to go to human resources and to file a police report,
and McCormick’s advice to Rodriguez to talk to
Vasquez before going to HR.
Rodriguez testified that after this incident,
Mack bumped his shoulder a few times when they
passed each other at work and drove a forklift at
him. (Tr. 252–254.) Rodriguez reported the incidents
with Mack to Haro Hikati in human resources. She
told him to speak with management, so Rodriguez
reported the incidents to Vasquez. Rodriguez wrote a
statement on February 1 and gave it to Vasquez. In
his statement, Rodriguez said Mack pushed him with
his elbow and then said, “excuse me.”30 (GC Exh. 38.)
Vasquez and McCormick met with Mack, who denied
he threatened or touched Rodriguez.31 (Tr. 826–827.)
Neither Mack nor Rodriguez was disciplined.
b. January 26, 2018 verbal counseling
record
Vasquez issued a verbal counseling record to
Rodriguez on January 26, 2018.32 The counseling
record states:
Today 1/26/18, at roughly 3:30 pm, Mr. Lu33
30 The statement does not reference the Mack driving the
forklift at him.
31 The date of this meeting is not clear. (Tr. 825.)
32 This verbal counseling record is not alleged as a violation in
the complaint, and is discussed as background evidence only.
33 Howard Lu is listed as warehouse supervisor on the original
voter list and first amended voter list. (U Exh. 53.)
App.68a
asked Alberto Rodriguez to do something for
him that was important to get done soon.
Alberto Rodriguez told Mr. Lu that he could
not do what Mr. Lu asked him because he
didn’t have a pallet jack. Mr. Romero overheard this conversation and saw Alberto
standing outside. So Mr. Romero went out
after 15 minutes and saw Alberto Rodriquez
sitting next to Nicole on the chairs. Mr.
Romero asked Alberto why he wasn’t working. and Alberto aid there were no pallet
jacks. Mr. Romero pointed out that we had 5
pallet jacks that were sitting in the charming
area. Alberto said, those don’t work and Mr.
Romero said I just used one of them they
work. At that time. Alberto got a pallet jack
and started working.
This is a verbal warning for not following
directions and wasting company time.
(GC Exh. 42.) Rodriguez told Lu that he would do it
after he completed a work order he was currently
working on Rodriguez also told Lu that at the time,
he did not have his pallet jack because one of the
drivers had taken it, so he did not have anything to
work with at that moment. (Tr. 262.) Rodriguez testified his pallet jack was not available because one of
the drivers had taken it, and the other pallet jacks
had boxes on top of them indicating they were being
used by another employee. Romero told Rodriguez to
grab another pallet jack, and he complied.
c. January 31, 2018 written warning
In mid-January, Rodriguez took some time off
because he was evicted. While moving, he injured his
App.69a
foot. He told McCormick he would not be at work on
January 15–16. On January 17, Rodriguez left early
because his foot hurt. McCormick noticed Rodriguez
did not have enough paid time off to cover his absences.
He reached out to human resources for guidance, and
Hikari told him to request supporting documentation
for the absences, which he did.34 Rodriguez was a nocall, no-show on January 19 and 22.
Rodriguez received a doctor’s note on January 24
clearing him to return to work the following day, which
he provided to McCormick. On advice from HR, McCormick reminded Rodriguez to bring in the documentation related to his eviction no later than January 29. Rodriguez told McCormick on January 29
and 30 that he could not find the eviction notice. On
January 30, Hinkle sent an email to McCormick
stating, “Is he working without presenting the document? Who contacted whom? Can we send him home
until he produces the document and put him on a
timeline?” Konishi responded that if Rodriguez could
not present supporting documentation in a week or
so, they would need to take disciplinary action. (R Exh.
7.)
On January 31, 2018, McCormick issued Rodriguez a written warning for taking unscheduled time
off with no leave available, and for failing to bring in
documentation following his absence.35 McCormick
34 In the email communication to human resources asking for
guidance, McCormick cc’d labor consultants C. Flores, G.
Flores, Acosta, and Hinkle, among others. Hikari’s response
copied the same individuals. (R Exhs. 7–8.)
35 Rodriguez’ testimony regarding his leave was not completely
forthright. When asked why he called out sick, Rodrigues
responded, “Well, that has to do with the eviction because I
App.70a
advised that the warning would be disregarded if
Rodriguez brought in a doctor’s note and supporting
documents related to Rodriguez’ eviction by February 7.
He brought in the doctor’s note, but not the paperwork related to the eviction. (GC Exh. 43; Tr. 268–
269.)
d. Suspension and termination
Rodriguez was suspended indefinitely without
pay on February 2, 2018, pending investigation of an
incident that occurred on January 31. (GC Exh. 35.)
On February 1, Mack gave the following statement to
McCormick regarding what had occurred on January
31:
To [sic] employees are having a conversation about the Union. A third employee
overheard the conversation and he felt
threatened by what was just said by the two
employees. There will be hell to pay. If they
vote (NO) Basically be ready to Fight if it
does not [ . . . ] the Union’s way. That’s what
I was told by the other employee.
(GC Exh. 12 p. 2.) Mack testified the two employees
having the conversation about the Union were Rodriguez and Benjamin Fili, and the third employee who
overheard was Eric McLoughlin. Mack did not hear
the comments attributed to Rodriguez.
McCormick wrote a statement on February 2,
listing the date of the incident as February 1,
stating:
didn’t have no sick time. So they—I didn’t have no PTO to use,
so they used it as a sick time.” (Tr. 267.) He admitted, however,
that he was injured when he moved out of his apartment.
App.71a
Yesterday during the Siliker audit, I stepped
out for a moment and happened to run into
Gus. Gus informed me there was an issue
regarding Marcus Mack and asked if I’d
look into it. After the audit, I got with
Marcus and we sat down together. At that
time, Marcus informed me that he overheard
some conversation regarding Alberto Rodriguez saying things like “if the union doesn’t
win, we are going to kick your ass.” These
were the words used to describe the situation. asked Marcus Mack to write a witness
statement describing these events as best
he could.
(GC Exh. 12 p. 6.)
On February 2, 2018, McLoughlin made a statement about an incident he heard on January 30:
When returning from my break Tuesday
evening (01/30/18) I entered the warehouse
to overhear the Wismettac employee I know
as Beto36 talking to a driver and another
employee about the union. When Beto37
seen [sic] me walking by he told the driver
to keep it down because I talk to Jose Rosas
and I was a union buster. They then said
“Let me find out he’s one. I don’t give a
fuck.” “Motherfucken union busters don’t
36 The statement is handwritten. The name “Rodriguez” is
written above and slightly off to the right of “Beto” in smaller
print.
37 “Rodriguez” is printed in the same manner as described in
the footnote directly above.
App.72a
even make union buster wages.” They said
it loud enough for me to hear I’m assuming
to intimidate me. They have also made it
clear that if the union loses the election
they will start a physical fight. Five minutes
after the incident they sent another employee to ask Jose Rosas if we were brothers. I
also observed the driver standing next to my
car looking at it five minutes after the
incident. When he seen [sic] me he stepped
back a little but stayed right there until I
went back in the warehouse.
Some time on or after February 6, McLoughlin
was interviewed about the incident, the notes from
which state:
What happened? Coming back from lunch,
Eric was heading back to where the time
clock area is. Eric saw “Beto” (Alberto Rodriguez) speaking to a driver wearing a Compton
hat (Benjamin Fili). As Rodriguez saw Eric
walking in, Rodriguez made a comment to
Fili saying “he’s one of them” to which Fili
responded “let me find out he’s one of them
I don’t give a fuck! Fucking Union-Busters
don’t even make Union-Buster Wages!” Eric
just kept walking. Fili then went outside to
the parking lot and stood feet away from my
car, as he began to play with his phone. I
went outside to make sure it was locked and
went back to work.38
38 The statement is in the third person until the last two
sentences of this paragraph. It goes on to detail what occurred
on February 6. Notes from an interview conducted with Mack
App.73a
(GC Exh. 12 pp. 3–4.)
When Matheu gave Rodriguez the suspension
papers, which were signed by Konishi, Matheu told
Rodriguez he was being terminated because he had
threatened coworkers to vote for the Union. (Tr. 235.)
Rodriguez was officially terminated on February 16,
for threats of violence against coworkers, racial harassment of a coworker, and insubordination.39 (GC
Exh. 36.) Matheu did not know what the “insubordination” referred to in the termination letter concerned. (Tr. 941.) Rodriguez received the termination
notice in the mail. He was not interviewed about any
of the alleged incidents comprising his termination.
14. The second election and surrounding
events
A couple of days before the election, management hung large banners discouraging employees
from voting for the Union, which remained present
on the day of the election. (Tr. 1471, 1519–1520; 1566.)
One said “DON’T PAY FOR UNION LIES.” Others
said, “VOTE NO FOR DUES STRIKES UNION
RULES” and “VOTE NO.” (U Exh. 42.) At the preelection meeting, the Union asked Wismettac to remove
the banners from the warehouse floor, to no avail.
(Tr. 1683.)
around the same time essentially recount this same conversation as reported to Mack by McLaughlin.
39 The termination notice also reference previous violations of
company policy. Rodriguez had been written up on June 13,
2017, and June 22, 2017, for repeated instances of tardiness.
(GC Exhs. 39–40.) Matheu made the decision in conjunction
with the director of logistics, Mr. Yoshinori, Toshi Nishikawa,
and Yoshie Narimoto. (Tr. 878.)
App.74a
The second election was February 6, 2018. Rodriguez was an observer for the Union but was told to
leave the premises. Mack was an observer for Wismettac.
The voting took place in a showroom next to the
warehouse office. (Tr. 1704; R Exh. 4.) There was a
camera in the hall outside the showroom. Quinonez
saw cameras pointing toward the voting room, and a
monitor with a camera inside the voting room. The
Respondent said the camera on the monitor did not
work, and the camera outside the voting room could
not be moved, so they would take their chances.
(Tr. 1677–1680, 1683.)
According to Matheu, the inside of the showroom
was not visible on the cameras. There were cameras
throughout the warehouse to observe employees which
have been present for a long time. There were at
least four cameras were positioned around the warehouse showroom and around 10 cameras hovered in
the docks and racks. (Tr. 1704–1707.)
The tally of ballots from the second election
showed that of 187 eligible voters, 76 votes were cast
for and 46 votes were cast against the Union, with 53
challenged ballots.
15. Events after the section election
The labor consultants’ assignments ended after
the election, but they were re-hired in March 2018.
Laura Garza began as Wismettac’s new employee
relations manager on March 12, 2018, following Baik’s
departure.
App.75a
On March 12, 2018, “Wismettac Asian Foods, Inc.
Management” sent employees a letter stating the
following:
To WLA Employees:
A number of employees have approached
WLA management asking how they can
revoke authorization cards they may have
previously signed and/or resign their membership in Teamsters Local 630. Attached is a
sample letter that can be sent to Local 630
for card revocation/membership resignation.
Sending this letter is your individual choice.
There will be no adverse job consequences
whether you send or do not send such a
letter. WLA does not discriminate against
employees based upon their Union
affiliation or support.
Should you have questions you may contact
NLRB Region 21 NLRB (213-894-5254 or
888 South Figueroa Street, 9th Floor, Los
Angeles, CA 90017-5449) and/or the National Right to Work Legal Defense Foundation
(800-336-3600 or www.nrtw.orq/free-legalaid).
(GC Exh. 20.)
The attached letter stated:
Gentlemen:
I write to inform you that I do not want to
be “represented” by your Union, do not wish
to be a member of your Union, and do not
support your Union in any manner. Please
consider my opposition to representation by
App.76a
your Union to be permanent and continuing
in nature.
I hereby revoke and rescind any Union
“authorization” card, or any other indication
of support for your Union, that I may have
signed in the past. Any such card or
indication of support for your Union is null
and void, effective immediately. To the extent
I may have become a member of the
International Brotherhood of Teamsters/
Teamsters Local 630, I hereby resign such
membership.
Please return to me any Union authorization card that I may have signed. Alternatively, please inform me in writing that
you are honoring this revocation and rescission of support for your Union.
Please be aware that refusing to honor my
card revocation/resignation of membership
will violate my rights under the National
Labor Relations Act. Moreover, representing
to my Employer, Wismettac Asian Foods,
Inc., that I support representation by your
Union will similarly violate my legal rights.
(GC Exh. 21.)
In mid-March 2018, before the results of the
second election were certified, Matheu, Vasquez, and
Gustavo Flores held meetings with employees. At the
first meeting, Garza was introduced. At the meetings,
G. Flores said some employees had approached him
and management to inquire about getting their authorization cards back. G. Flores placed copies of the letter
a stack on a table. (Tr. 375–379; 538–540.) Garza and
App.77a
G. Flores held several such meetings over the course
of 2 or 3 days. G. Flores read the letter to the
employees and told them they were not obligated to
sign it. Copies of the letter were also made available
in the lunchroom. Gustavo Linares, Jesus De Leon,
and Javier Robles, all warehouse workers on the day
shift, each attended one of these meetings, though
none had sought information about how to revoke his
authorization card.40 (Tr. 191, 379, 542.) The letter
was also distributed to employees around March 12,
2018. (Tr. 205–206.)
The Union received revocation letters, on the
form G. Flores provided, from two employees, on
March 18 and 22, 2018. (GC Exhs. 17–18, 20–21.)
B. Analysis and Decision
1. Witness credibility
Many of the disputes at issue can be resolved
only by assessing witness credibility. A credibility determination may rest on various factors, including
“the context of the witness’ testimony, the witness’
demeanor, the weight of the respective evidence,
established or admitted facts, inherent probabilities
and reasonable inferences that may be drawn from
the record as a whole.” Hills & Dales General Hospital,
360 NLRB No. 70, slip op at 7 (2014), citing Double D
Construction Group, 339 NLRB 303, 305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001). In making
credibility resolutions, it is well established that the
trier of fact may believe some, but not all, of a
40 There was no roster or check-off sheet indicating which
employees took a copy of the letter. (Tr. 1050–1052.)
App.78a
witness’s testimony. NLRB v. Universal Camera Corp.,
179 F.2d 749 (2d Cir. 1950).
The Board has agreed that “when a party fails to
call a witness who may reasonably be assumed to be
favorably disposed to the party, an adverse inference
may be drawn regarding any factual question on
which the witness is likely to have knowledge.”
International Automated Machines, 285 NLRB 1122,
1123 (1987), enfd. 861 F.2d (6th Cir. 1988). This is
particularly true where the witness is the Respondent’s agent. Roosevelt Memorial Medical Center, 348
NLRB 1016, 1022 (2006). Moreover, an adverse inference is warranted by the unexpected failure of a
witness to testify regarding a factual issue upon
which the witness would likely have knowledge. See
Martin Luther King, Sr., Nursing Center, 231 NLRB
15, 15 fn. 1 (1977) (adverse inference appropriate where
no explanation as to why supervisors did not testify);
Flexsteel Industries, 316 NLRB 745, 758 (1995) (failure to examine a favorable witness regarding factual
issue upon which that witness would likely have
knowledge gives rise to the “strongest possible adverse
inference” regarding such fact).
Testimony from current employees tends to be
particularly reliable because it goes against their
pecuniary interests. Gold Standard Enterprises, 234
NLRB 618, 619 (1978); Georgia Rug Mill, 131 NLRB
1304, 1304 fn. 2 (1961); Gateway Transportation Co.,
193 NLRB 47, 48 (1971); Federal Stainless Sink Div.
of Unarco Industries, 197 NLRB 489, 491 (1972).
It is impossible to reconcile all of the different
recollections of the witnesses for both sides. In evaluating the various different versions of events, I have
fully reviewed the entire record and carefully observed
App.79a
the demeanor of all the witnesses. I have considered
the apparent interests of the witnesses; the inherent
probabilities in light of other events; corroboration or
the lack of it; consistencies or inconsistencies within
the testimony of each witness and between witnesses
with similar apparent interests. See, e.g. NLRB v.
Walton Mfg. Co., 369 U.S. 404, 408 (1962). Testimony
in contradiction to my factual findings has been
carefully considered but discredited. Where there is
inconsistent evidence on a relevant point, my credibility findings are incorporated into my legal analysis
below.
2. Alleged promises of benefits
improved working conditions
and
Complaint paragraph 6(a)–(f) alleges that the
Respondent violated Section 8(a)(1) of the Act by
promising employees better benefits and improved
terms and conditions of employment if the employees
rejected the Union.
The Board’s longstanding test to determine if
there has been a violation of Section 8(a)(1) of the
Act is whether the employer engaged in conduct
which might reasonably tend to interfere with the
free exercise of employee rights under Section 7 of
the Act. Am. Freightways Co., 124 NLRB 146 (1959).
Further, “It is well settled that the test of interference, restraint, and coercion under Section 8(a)(1) of
the Act does not turn on the employer’s motive or on
whether the coercion succeeded or failed.” Am. Tissue
Corp., 336 NLRB 435, 441 (2001) (citing NLRB v. Ill.
Tool Works, 153 F.2d 811, 814 (7th Cir. 1946)). It is
the General Counsel’s burden to prove 8(a)(1) violations.
App.80a
An employer is free to communicate to his employees any of his general views about unionism or
any of his specific views about a particular union, so
long as the communications do not contain a “threat
of reprisal or force or promise of benefit.” NLRB v.
Gissel Packing Co., 395 U.S. 575, 614 (1969).41
The Supreme Court, in Medo Photo Supply
Corp. v. NLRB, 321 U.S. 678, 686 (1944), stated that
the “action of employees with respect to the choice of
their bargaining agents may be induced by favors
bestowed by the employer as well as by his threats or
domination.” As the Court explained in NLRB v.
Exchange Parts Co., 375 U.S. 405, 409 (1964):
The danger inherent in well-timed increases
in benefits is the suggestion of a fist inside
the velvet glove. Employees are not likely to
miss the inference that the source of
benefits now conferred is also the source
from which future benefits must flow and
which may dry up if it is not obliged.
(footnote omitted.) The Court held that that “the
conferral of employee benefits while a representation
election is pending, for the purpose of inducing
employees to vote against the union,” interferes with
the employees’ protected right to organize.
Employer solicitation of employee grievances or
complaints during an organizing campaign may be
41 The Respondent contends that its communications were protected under Section 8(c) of the Act. As the Supreme Court
made clear in Gissel, however, speech that crosses the line and
violates Section 8(a)(1) is not protected. As such, the Respondent’s argument is rejected where I have found violations of
Section 8(a)(1).
App.81a
considered as an implied promise to resolve complaints
elicited favorably for the employees. See Alamo Rent-ACar, 336 NLRB 1155 (2001). See also Reliance Electric Co., 191 NLRB 44, 46 (1971) (employer soliciting
complaints, where it has not done so in the past,
raises “compelling inference that he is implicitly
promising to correct those inequities he discovers as
a result of his inquiries and likewise urging on his
employees that the combined program of inquiry and
correction will make union representation unnecessary.”) An employer with a past practice of soliciting
employee grievances may continue to do so during an
organizing campaign as long as the practice remains
essentially the same. It is the employer’s burden to
establish the past practice. Longview Fibre Paper &
Packaging, Inc., 356 NLRB 796 (2011).
The fact that an employer couches the promise
of benefits in more general language that does not
guarantee anything specific does not remove the
taint of illegality. In Reliance Electric Co., 191 NLRB
44 (1971), enf. 457 F.2d 503 (6th Cir. 1972), at
preelection meetings, management officials told the
employees that they would “look into” or “review”
problems. The Board noted that such cautious language, or even a refusal to commit to specific corrective action, does not cancel the employees’ anticipation of improved conditions if the employees vote
against the union. See also Reno Hilton, 319 NLRB
1154, 1156 (1995).
In assessing each individual alleged violation, I
am guided by the principle that “the totality of
relevant circumstances” must be appraised and that
written and oral statements should not be viewed in
isolation from each other. Mediplex of Danbury, 314
App.82a
NLRB 470, 471 (1994); and UARCO, Inc., 286 NLRB
55, 58 (1987), review denied 865 F.2d 258 (6th Cir.
1988).
a.
Paragraph 6(a) of the complaint alleges: About
September 8, 2017, Respondent, by Frank
Matheu (Matheu), in Respondent’s conference room at the Santa Fe Springs facility,
promised employees better benefits and
improved terms and conditions of employment if employees rejected the Union as
their bargaining representative.
The testimony of the R. Lopez and L. Lopez,
detailed in the statement of facts, was consistent and
shows that Matheu made unlawful promises. They
each testified with forthright demeanors and did not
appear to embellish their testimony. The Lopez’ testimony is also more broadly and generally corroborated by the testimony of other employees who
attended similar meetings in the wake of the petition
filing. Their recollections of Matheu’s comment that
he was given a “green light” to make improvements,
and would do so as long as no third party came in is
very consistent with Matheu’s own talking points
prepared in and around this same time period. The
talking points specifically reference a “green light” to
make changes, “disgust” with the “disrespectful and
cowardly” actions of the union, an affirmative statement that “there will be changes,” and more specifically, “I will now have full support from upper management, they will listen, I will justify, and will change
whatever needs to be changed to improve work environment, and give .you what you need to get the job
done.” (GC Exh. 56.)
App.83a
As current employees testifying against their
own interests, I find the Lopez’ testimony compelling.
Matheu testified that he only conveyed that upper
management would support anything he could to
within the bounds of the law to assist operations, and
did not make specific promises. This is unavailing.
Reliance Electric Co., supra. I also note that, while
the labor consultants G. Flores and C. Flores were both
at this meeting, and G. Flores testified at the hearing,
he did not address this matter.42
b.
Paragraph 6(b) of the complaint alleges:
About mid-September 2017, Respondent, by
Matheu, by the time clock at the Santa Fe
Springs facility, promised its employees
giving back their bonuses and retroactive
pay if the employees rejected the Union as
their bargaining representative.
Alvarado, a 13-year employee, testified Matheu
approached him at the timeclock, said he had bought
new machines for the employees, these changes were
only the beginning, and he would do what was
possible to restore bonuses and retro pay. I credit
Alvarado’s testimony because it is consistent with
42 The General Counsel requests an adverse inference based on
the Flores’ failure to corroborate Matheu, particularly since G.
Flores testified at the hearing. I agree this is warranted under
Flexsteel Industries, 316 NLRB 745, 758 (1995) (failure to
examine a favorable witness regarding factual issue upon which
that witness would likely have knowledge gives rise to the
“strongest possible adverse inference” regarding such fact). I
would come to the same conclusion without it though. The General Counsel also asks for an adverse inference based on
Vasquez’ failure to corroborate Matheu’s account, which I grant
but also note it does not change the outcome.
App.84a
what other employees heard, and as a current
employee testifying against his own pecuniary
interests, his testimony is particularly reliable.
Alvarado’s
demeanor
appeared
honest
and
straightforward. Moreover, his testimony is consistent with Matheu’s talking points.
c.
Paragraph 6(c) of the complaint alleges:
About mid-September 2017, Respondent, by
Matheu, by the loading dock at the Santa Fe
Springs facility, promised its employees
giving back their bonuses and retroactive
pay if the employees rejected the Union as
their bargaining representative.
L. Lopez testified that in early September 2017,
Matheu approached him at the loading dock and said
the owner had empowered him to make changes, he
knew bonuses and retroactive pay had been taken
away, and he would bring them back. I credit L.
Lopez for the reasons cited above.
d.
Paragraphs 6(d)-(e) allege that a series of
meetings on September 15 and 18, promised
better benefits and improved working conditions if the employees rejected the Union as
their bargaining representative.
The testimony of the employees who attended
the meetings, detailed above, consistently conveyed
that Matheu promised to make changes as long as a
third party did not come in. Drivers R. Lopez, L.
Lopez, and Alvarado, as well as warehouse workers
De Leon, Ho, and Zamora all recalled Matheu promising changes, and again, this is consistent with his
prepared talking points. Ho was a 27-year employee,
and I found his testimony to be very credible, based
App.85a
on his calm and straightforward demeanor. At the
time of the hearing, De Leon had left Wismettac and
therefore had no personal stake in whether or not the
Union won the election. Aside from Matheu’s general
denial, no other manager or agent who was present
at the meeting contradicted the witness’ corroborative
accounts, which as noted are further corroborated by
Matheu’s own talking points.
The testimony above shows that on each of the
occasions, Matheu told employees that positive
changes would be forthcoming as long as the Union
stayed out. Based on the foregoing, I find the General Counsel has met the burden to prove the Respondent violated Section 8(a)(1) as set forth in complaint
paragraph 6(a)–(f).
3. Rolando
record
Lopez
verbal
counseling
Complaint paragraph 7 alleges that the Respondent violated Section 8(a)(1) by issuing Rolando Lopez
a verbal counseling record on December 5, 2017.
I must first determine whether R. Lopez engaged
in protected concerted activity. “To be protected under
Section 7 of the Act, employee conduct must be both
‘concerted’ and engaged in for the purpose of ‘mutual
aid or protection.’” Fresh & Easy Neighborhood Market,
361 NLRB 151, 153 (2014). The Board has held that
activity is concerted if it is “engaged in with or on the
authority of other employees, and not solely by and
on behalf of the employee himself.” Meyers Industries
(Meyers I), 268 NLRB 493 (1984), revd. sub nom Prill
v. NLRB, 755 F. 2d 941 (D.C. Cir. 1985), cert. denied
474 U.S. 948 (1985), on remand Meyers Industries
(Meyers II), 281 NLRB 882 (1986), affd. sub nom
App.86a
Prill v. NLRB, 835 F. 2d 1481 (D.C. Cir. 1987), cert.
denied 487 U.S. 1205 (1988).
The facts, detailed above, show that R. Lopez
and at least one other driver voiced concerns about
carrying overweight loads at a safety meeting Matheu
conducted with the drivers. R. Lopez did not complain
alone, and the topic, carrying overweight loads, was
not an individual concern. I therefore find R. Lopez
engaged in concerted activity.43
The Respondent argues R. Lopez’ safety complaint lost the Act’s protection because he “crossed
the line” and “disrupted the meeting.” “Where, as
here, it is clear that an employee was discharged for
an outburst that occurred while engaging in Section
7 activity, the appropriate inquiry is whether the
outburst was so opprobrious as to remove the
employee from the protection of the Act.” Datwyler
Rubber & Plastics, Inc., 350 NLRB 669, 670 (2007),
citing Beverly Health & Rehabilitation Services, 346
NLRB 1319, 1322 (2006). Because the meeting in
which R. Lopez’ alleged unprotected conduct occurred
in person at the workplace, the factors set forth in
43 The evidence establishes that Alvarado shared R. Lopez’ concern about overweight loads and spoke out about it shortly
before the meeting, and another drivers also complained during
the meeting, therefore I do not need to determine whether R.
Lopez acted individually to induce group action. In other words,
the activity in this case was not the mere “individual griping”
the Board addressed in Alstate Maintenance, LLC, 367 NLRB
No. 68 (2019). In any event, as the Board stated in Meyers II,
supra. at 887, “Meyers I encompasses those circumstances
where individual employees seek to initiate or to induce or to
prepare for group action, as well as individual employees
bringing truly group complaints to the attention of management. (Emphasis supplied.)
App.87a
Atlantic Steel Co., 245 NLRB 814, 816 (1979), apply.
Under Atlantic Steel, the Board considers the
following factors to determine whether an employee
loses the Act’s protection: (1) the place of the
discussion; (2) the subject matter of the discussion;
(3) the nature of the employee’s outburst; and (4)
whether the outburst was, in any way, provoked by
an employer’s unfair labor practice.
Here, the place of the discussion was a safety
meeting for the drivers, with Matheu Romero, Vasquez,
and Sands present for management. Spontaneous
employee comments made during group meetings are
more likely to be protected. Datwyler Rubber &
Plastics, Inc., 350 NLRB 669, 670 (2007). Moreover,
the incident did not entail a risk of disruption of
work, as it was a management-ordered meeting safety
meeting where the drivers were assembled. Id. The
first factor weights in the General Counsel’s favor.
Second, the subject matter of the discussion was
safety. While the Respondent contends the meeting
was also assembled to go over how to fill out
paperwork, Matheu referred to the meeting as a safety
meeting, and R. Lopez’ comments about overweight
trucks occurred in the context of Matheu reviewing
the previous week’s accidents. This weighs in the
General Counsel’s favor. See Kiewit Power
Constructors Co., 355 NLRB 708, 709 (2010), enfd.
652 F.3d 22 (D.C. Cir. 2011).
Turning to the third factor, the nature of the
outburst, I find there was no “outburst” at all. R.
Lopez’s comments and behavior were very mild. R.
Lopez did not use any profanity, make threats, act
insubordinately, or touch anyone. At most, he raised his
voice, rolled his eyes and smacked his lips, interr-
App.88a
upted Matheu, and had his arms crossed in front of
him, slightly leaning back.44 Postal Service, 250 NLRB
4, 6 (1980) (calling acting manager a “stupid ass” in a
grievance meeting was part of the res gestae of the
protected discussion); Mini-Togs, Inc., 304 NLRB 644
(1991)(applying Postal Service beyond the grievance
setting); Burle Industries, 300 NLRB 498 (1990),
enfd. 932 F.2d 958 (3d Cir. 1991) (Employee did not
forfeit protection when, in the course of encouraging
employees to leave the facility due to a possible
chemical spill, he called a supervisor a “f’ing asshole”
for wanting employees to work despite the fumes).
The tame nature of R. Lopez’ generalized comments
and his mild actions accompanying them strongly
weighs in favor of continued protection.45
Finally, I must consider whether R. Lopez’ comments were, in any way, provoked by an unfair labor
practice. While not directly linked to an unfair labor
practice, the meeting occurred in the wake of
meetings Matheu and labor consultants held with
employees to discourage them from voting for the
Union, which I have found to constitute an unfair
labor practice. See Plaza Auto Center, Inc. v. NLRB,
44 Sands also said R. Lopez was sarcastic, but given that she
admittedly did not understand him because she does not speak
Spanish, I do not credit this, and I find Sands’ after-the-fact
recollection of the meeting, put in writing at HR’s prompting
after the discipline was already issued, is entitled to very little
weight.
45 The Respondent cites to Central States SE & SW Areas,
Health & Welfare Pension Funds, 362 NLRB 1280 (2005) (R Br.
21.) The correct citation is 362 NLRB 1280, and I cannot
discern how this case stands for the proposition that R. Lopez
lost the Act’s protection.
App.89a
664 F.3d 286 (9th Cir. 2011). Accordingly, considering
the Atlantic Steel factors and the totality of the circumstances, I find that R. Lopez’ remarks retained
the Act’s protection.
Most cases involving alleged discriminatory discipline are analyzed under Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989, approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). The
Board has held, however, that Wright Line does not
apply to situations where a causal connection between
the employee’s protected activity and the employer’s
conduct that is alleged to be unlawful may be presumed. See e.g., Aluminum Co. of America, 338 NLRB
20, 22 (2002); Atlantic Scaffolding Co., 356 NLRB
835, 839 (2011). An employee’s discipline independently
violates Section 8(a)(1), regardless of the employer’s
motive or a showing of animus, where “the very
conduct for which employees are disciplined is itself
protected concerted activity.” Burnup & Sims, Inc.,
256 NLRB 965, 976 (1981). Furthermore, when an
employee is disciplined for conduct that is part of the
res gestae of his protected concerted activities, “the
pertinent question is whether the conduct is sufficiently egregious to remove it from the protection of
the Act.” Stanford NY, LLC, 344 NLRB 558 (2005);
Aluminum Co. of America, supra.
As detailed above, R. Lopez was disciplined for
his protected concerted activity of raising a safety
concern at a safety meeting.46 Accordingly, I find the
46 Even assuming R. Lopez was not engaged in protected
activity, the General Counsel has still established a violation
under Wright Line. R. Lopez was a known advocate for the
Union, there is extensive evidence of animus as discussed
App.90a
General Counsel has proved the Respondent violated
Section 8(a)(1) of the Act as alleged in complaint
paragraph 7.
4. Ruben
Munoz
written
warning,
removal from lead position, and shift
change
Complaint paragraph 8 alleges the Respondent
violated Section 8(a)(3) and (1) of the Act by issuing
Ruben Munoz written warning on October 23, 2017,
and removing him from his lead position, and
changing his work shift on October 25, 2017.
To determine whether an employer has taken an
adverse action because of union activity, the Board
applies the test of motivation set forth in Wright
Line, 251 NLRB 1083 (1980), enforced on other
grounds, 662 F.2d 889 (1st Cir. 1981), and approved
by the Supreme Court in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). Under Wright
Line, the General Counsel must prove the employee’s
protected activity was a motivating factor in the
adverse employment action. The elements commonly
required are union or other protected activity by the
employee, employer knowledge of that activity, and
antiunion animus on the part of the employer. See
Willamette Industries, 341 NLRB 560, 562 (2004);
East End Bus Lines, Inc., 366 NLRB No. 180 (2018).
If the General Counsel makes this initial showing,
the burden of persuasion “shift[s] to the employer to
demonstrate that the same action would have been
throughout this decision, and the Respondent’s post-hoc
solicitation of Sands’ statement to justify the discipline along
with other evidence of pretext and antiunion bias establish
unlawful motivation.
App.91a
taken even in the absence of the protected conduct.”
Allstate Power Vac., 357 NLRB at 346 (quoting
Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961
(2004)). “The ultimate inquiry” is whether there is a
nexus between the employee’s protected activity and
the challenged adverse employment action. Chevron
Mining, Inc. v. NLRB, 684 F.3d 1318, 1327-1328
(D.C. Cir. 2012).
The Respondent concedes Munoz was a known
Union supporter. With regard to animus, the record
is replete with direct evidence showing very clearly
Wismettac’s disdain for the Union, including
Matheu’s talking points and the meetings where they
were put into action.
Moreover, animus can be inferred from other
evidence, such as “suspicious timing, false reasons
given in defense, failure to adequately investigate
alleged misconduct, departures from past practices,
tolerance of behavior for which the employee was
allegedly [disciplined], and disparate treatment.” Medic
One, Inc., 331 NLRB 464, 475 (2000). See also Golden
Day Schools v. NLRB, 644 F.2d 834, 838 (9th Cir.
1981); NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354
(7th Cir. 1984) (timing); Mid-Mountain Foods, Inc.,
332 NLRB 251, 260 (2000), enfd. mem. 169 LRRM
2448 (4th Cir. 2001); Richardson Bros. South, 312
NLRB 534 (1993) (other unfair labor practices);
NLRB v. Vemco, Inc., 989 F.2d 1468, 1473–1474 (6th
Cir. 1993); Affiliated Foods, Inc., 328 NLRB 1107
(1999) (statements showing animus); Naomi Knitting
Plant, 328 NLRB 1279, 1283 (1999) and Roadway
Express, 327 NLRB 25, 26 (1998) (disparate treatment); JAMCO, 294 NLRB 896, 905 (1989), affd.
App.92a
mem. 927 F.2d 614 (11th Cir. 1991), cert. denied 502
U.S. 814 (1991) (departure from past practice).
The timing of events with regard to Munoz’ discipline is highly suspicious. The Respondent, on the
heels of the first election in its September 26, 2017
offer of proof to support its objections, stated Munoz
had operated a forklift in an unsafe manner against
employees who did not support the Union, and otherwise intimidated such employees. The offer of proof
specifically mentioned Jose Rosas as a recipient of
Munoz’ intimidating behaviors. Yet, Matheu visited
Rosas’ house in October to gather the information he
needed to support Rosas’ contention.47 Breaking from
past practice both as to location and participants,
instead of having human resources conduct an investigation, he took labor consultants G. Flores and C.
Flores to Rosas’ house to personally interview employees about their dissatisfaction with Munoz. Ortiz and
Vargas did not date the statements they made about
Munoz’ shortcomings, and the undated statements in
turn give no dates for Munoz’ alleged misconduct.
For these reasons and also considering the fact that
Munoz was in his position as lead for about six months
without any indication of problems, I find the timing
and circumstances extremely suspicious.
The investigation is likewise suspicious, as nobody
interviewed Munoz or his direct supervisor Garcia,
47 I find the evidence establishes the meeting at Rosas’ house
occurred in October. This was Matheu’s initial testimony, the
only dated statement related to this meeting is October 18, and
the discipline and termination stemming from the meeting
occurred in late October.
App.93a
who was conspicuously kept out of the loop.48 An
employer’s failure to conduct a full and fair investigation into an employee’s alleged misconduct may,
depending on the circumstances, constitute evidence
of discriminatory motive. Hewlett Packard Co., 341
NLRB 492 fn. 2 (2004); Alstyle Apparel, 351 NLRB
187, 1288 (2007), Midnight Rose Hotel & Casino, 343
NLRB 1003, 1005 (2004), enfd. 198 Fed. Appx. 752
(10th Cir. 2006); See also Diamond Electric Mfg.
Corp., 346 NLRB 857, 861 (2006), La Gloria Oil &
Gas Co., 337 NLRB 1120, 1124 (2002) (The failure to
give an employee an opportunity to explain the circumstances for which he or she is being disciplined
or discharged supports a finding of pretext.) In the
circumstances of this case, given the timing of the
investigation in relation to the first election, the
inclusion of union-avoidance labor consultants in the
investigation, and the evidence of antiunion sentiment,
I find that the manner in which the investigation of
Munoz was conducted is strong evidence of discriminatory intent. In addition, other unfair labor practices, which exist here, “are clearly sufficient to
48 At best, Matheu mentioned the complaints to Garcia at some
unspecified time without involving him in any meaningful way:
Q
Now, did you ever discuss the issues raised by
Walter Vargas and Oscar Ortiz to the behavior of
Mr. Munoz? Did you ever discuss those with Isidro
Garcia?
A
Yes, I did.
Q
And do you recall his response?
A
Isidro’s response was yes, I’ve heard there wasthere-some arguments amongst them and there’s
some issues amongst them. He did mention that.
(Tr. 859.)
App.94a
establish antiunion animus on the part of that company.” Parsippany Hotel Mgmt. Co. v. NLRB, 99 F.3d
413, 423–424 (D.C. Cir. 1996)
Based on the foregoing, the General Counsel has
overwhelmingly established the initial Wright Line
burden.
The burden now shifts to the Respondent “to
demonstrate that the same action would have taken
place even in the absence of the protected conduct.”
Wright Line, supra, at 1089. The employer cannot
carry this burden merely by showing that it also had
a legitimate reason for the action, or that it could
have taken the action, but must persuade by a
preponderance of the evidence that the action would
have taken place absent the protected activity.
Dentech Corp., 294 NLRB 924, 956 (1989); Structural
Composites Industries, 304 NLRB 729, 730 (1991).
Where the General Counsel makes a strong
showing of discriminatory motivation, the employer’s
defense burden is substantial. See, e.g., Bally’s Park
Place, Inc., 355 NLRB 1319, 1321 (2010) (reversing
judge and finding violation because judge “did not
consider the strength of the General Counsel’s case
in finding that the Respondent met its Wright Line
rebuttal burden”), enfd. 646 F.3d 929 (D.C. Cir. 2011);
East End Bus Lines, supra. Given the wealth of evidence regarding animus, I find this is such a case.
The Respondent contends Munoz was demoted
because of employee complaints about his temperament and character as lead. The specific reasons set
forth in the demotion, however, do not line up with
the evidence. I find the complaints were drummed up
App.95a
to justify demoting Munoz and are pretexted to hide
discriminatory motivation.
Pretext has been established in a variety of circumstances, including showing the employer’s
explanations are implausible or illogical, Allegheny
Ludlum Corp. v. NLRB, 104 F.3d 1354, 1364–67 (D.C.
Cir. 1997); unfounded or untrue, See CC1 Ltd.
Partnership v. NLRB, 898 F.3d 26 (D.C. Cir. 2018);
exaggerated or inflated, Sprain Brook Manor Nursing
Home, LLC, 359 NLRB 929, 942-43 (2013), incorporated by reference in 361 NLRB 607 (2014), enfd. 630
F. App’x 69 (2d Cir. 2015); Jackson Corp., 340 NLRB
536, 588–89 (2003); or inconsistent, shifting, or post
hoc. Inter-Disciplinary Advantage, Inc., 349 NLRB
480, 509 (2007); Con-Way Freight, 366 NLRB No. 183
(2018), slip op. at 4.
One of the reasons for Munoz’ demotion, driving
the forklift backward with the pointy part in the
front, was untrue and admittedly not supported.
None of the employees who complained about Munoz
testified. One is left to believe that Matheu genuinely
concluded Munoz was no longer fit for his job based
on reports from known antiunion employees of
undated instances of Munoz’ misdeeds that Matheu,
along with the labor consultants hired to keep out
the Union, elicited at know antiunion employee
Rosas’ home, with no input from Munoz or his firstline supervisor.
For example, Vargas reported Munoz “harassed”
him, but no specific instances of such harassment are
described or placed in time. Vargas said Munoz drove
his vehicle aggressively, but again gave no specific
account. Vargas said Munoz “humiliated” employees
who did not build pallets to his standards. Again, the
App.96a
factfinder is left wondering what form this alleged
humiliation took, to whom it was directed, and when
it occurred. Despite making a statement of his own,
Vargas did not mention any of the infractions that
ended up in Munoz’ written warning.49
Ortiz’ complaints in his undated statement likewise offer no temporal context. Indeed, this is undoubtedly the reason the discipline itself conspicuously
fails to list dates of any alleged infractions. Even had
Munoz been included in an investigation, it is
impossible to see how he could have responded in
any meaningful way. At the hearing, Munoz denied
he engaged in any of the conduct alleged against
him. Munoz was a highly credible witness, who
appeared confident and sincere in his answers. I
credit Munoz’ testimony over the witness statements
or Matheu’s second-hand testimony about them.
It is undisputed that Rosas worked in freezer
department and rarely interacted with Munoz.50 Labor
Consultant G. Flores, who was present at Rosas’
house, only testified that during the meeting Rosas
complained about Munoz’s union activities.51 Rosas
also submitted a written statement regarding his issues
with Munoz. He mentioned Munoz crashing into two
employees, but failed to name the employees or provide timeframes. The bulk of Rosas’ statement concerns
Munoz talking about “political issues” and voting.
Rosas failed to detail when any incidents occurred, or
49 Vargas’ statement is at GC 61.
50 Tr. 409–410, 896–897.
51 Tr. 1059.
App.97a
how he heard about them given that he worked in a
different area.
The insertion of a union-avoidance labor consultant to interview employees about Munoz’ conduct is
unorthodox and smacks of inappropriate bias. Faced
with this oddity, Matheu struggled to explain:
Q
Okay, and with regard to the operation-excuse
me, the investigation, where you testified,
as related to Mr. Munoz, and there was testimony that Gus Flores was involved. Why
was Mr. Flores involved, as opposed to
human resources?
A
There was a lot going on during that time
period. A lot going on. And HR was shorthanded. Obviously with the legality and the
size of this-this, you know, this thing, this
situation, we needed help.
(Tr. 947–948.)
That first-line supervisor Garcia was not involved
in the conversations with the antiunion employees
about Munoz’ alleged aggressive and unsafe behavior
shows that union/antiunion sentiment, as opposed to
genuine concern for workplace safety, was the driving
force. Longstanding Board precedent has consistently
held that “an employer’s failure to conduct a full and
fair investigation of an employee’s alleged misconduct
is evidence of discriminatory intent, especially when
viewed in the light of the employer’s union hostility.”
Firestone Textile Company, 203 NLRB 89, 95 (1973),
and case cited therein. In the heat of a unionorganizing drive, the Respondent’s one-sided reliance
on known antiunion employees’ statements to demote
Munoz, without even the semblance of an indepen-
App.98a
dent investigation, is glaring.52 This is particularly
true considering temporary employees Vargas and
Rosas had only been working at Wismettac a few
months, while Munoz was an 11-year employee with
no previous discipline.53
Moreover, it is implausible that management
genuinely relied upon the witness’ statements to
demote Munoz. If indeed Munoz was crashing into
employees on the workroom floor, it makes no sense
to place him in a warehouse position where he could
continue this highly dangerous behavior. It also
defies reason that such dangerous conduct would not
have contemporaneously been brought to management’s attention by someone in the warehouse, or
picked up on one of the cameras used to observe
employees on the warehouse floor. Indeed, when
management was informed Rodriguez spent too long
in the bathroom, cameras were checked after the fact
to verify just how much time he took.
In sum, in late September, the Respondent sought
to object to the first election based in part Rosas’
report of Munoz’ conduct of “repeatedly driving a
forklift in a threatening manner” and approaching
52 Baik, who was responsible for conducting investigations, admitted she did not conduct an independent investigation into the
employees’ complaints about Munoz. She did not speak to Munoz
or his supervisor, Garcia, about Munoz’ conduct. (Tr. 1396, 1419.)
53 Vargas began as a temporary employee in July 2017 and
Rosas in May 2017. The General Counsel cites to comparative
employees to show disparate treatment. (GC Br. 119–121.)
While I find the comparisons are factually supported in the
record, I do not rely on them because none of the comparators
were leads, and I find other evidence more persuasive and more
than sufficient to meet the General Counsel’s burden.
App.99a
employees who did not support the Union. The forklift driving allegation flat-out fell apart, as described
above, and the ensuing “investigation” to justify
vilifying Munoz was an obvious sham, as was the
resulting discipline, demotion and shift change. Any
prospect the Respondent honestly formed a reasonable belief the employees’ complaints about Munoz were
a legitimate basis for his demotion is unmistakably
belied by the Respondent’s pronounced one-sidedness
in seeking to justify its actions.
Based on the foregoing, I find the proffered reasons
for Munoz’ letter of warning and subsequent demotion
and loss of pay were pretext to mask the Respondent’s unlawful antiunion motivation, and the General
Counsel has proved the allegations in complaint
paragraph 8.
5. Pedro Hernandez termination
Complaint paragraph 9 alleges the Respondent
violated Section 8(a)(3) and (1) by terminating Pedro
Hernandez on October 31, 2017.
The Wright Line paradigm applies here. It is undisputed Hernandez engaged in union activity and
management knew about it. Antiunion animus has
been established, as detailed above. Accordingly, the
General Counsel has established the initial Wright
Line burden.
The burden now shifts to the Respondent “to
demonstrate that the same action would have taken
place even in the absence of the protected conduct.”
Wright Line, supra, at 1089. The Respondent contends
Hernandez was terminated because he created a
App.100a
hostile environment on the night shift. I find this
reason is pretexted to mask anti-union motivation.
Matheu’s involvement in documenting Herandez’
behavior began when labor consultant G. Flores told
him Vargas had alleged Hernandez created a hostile
work environment on the p.m. shift. In the midst of
an organizing drive, given the known respective stances
of management, the labor consultants, Vargas, and
Hernandez toward the Union, if the aim was at all to
get at the truth, minimal prudence and basic common
sense dictate that a careful and independent verification would ensue. As with Munoz, however, the
opposite occurred.
As the General Counsel points out, however,
Matheu, the decision-maker, was very inconsistent
regarding how he gathered the information he used
to support Hernandez’ termination. Matheu first testified as follows:
A
I spoke to him after the-right after the
meeting.
Q
Okay. And what did you tell him?
A
I took him obviously to an area where-very
private, and I explained to him that that
was his last day with the Company.
Q
Okay. And why was it his last day?
A
There were allegations of him also creating
a hostile environment in the p.m. shift,
refusing to help employees, being offensive
to them.
Q
Okay. And do you recall who made those
allegations against him?
App.101a
A
I believe it was Walter Vargas. I cannot
recall that.
Q
Did you interview Mr. Vargas personally
regarding the allegations about Pedro
Hernandez?
A
I did not.
Q
Okay. Do you know who did?
JUDGE LAWS: Do you know if anybody did?
THE WITNESS: I believe somebody did, I don’t
know-I don’t know who
Q
BY MR. WILSON: Okay.
A
—at this point.
Q
Do you recall who reported that information
to you?
A
Yes.
Q
Who was that?
A
It was Gus Flores.
Q
Okay. To your knowledge, did Gus Flores do
an interview with-if you know, with Mr.
Vargas regarding the allegations made
against Mr. Hernandez?
A
I believe he did, yes.
(Tr. 870–871.) Apparently, Matheu recalled relying
on the labor consultant’s recitation of an interview
he had conducted with Vargas to justify Hernandez’
termination. Yet the evidence shows Matheu did
interview Vargas about Hernandez’ alleged creation
of a hostile work environment, and he took notes. In
fact, Matheu interviewed Vargas about Hernandez
App.102a
during the same visit to Rosas’ house where Matheu
interviewed him about Munoz’ alleged creation of a
hostile work environment.54
Later in his testimony, Matheu recalled interviewing Vargas about Herandez, and recalled that
Vargas said Hernandez made comments about how
the Union will win.55 G. Flores likewise admitted
that Vargas complained to both him and Matheu
about Hernandez’ involvement with the Union.56
Matheu’s notes regarding what Vargas said
about Hernandez state, in total, the following:
“‘called me dumbass’” “‘Union will win’” “Treats me
very bad. Very abusive and discriminatory behavior”
“clapping and calling me dumbass.” “Slave like
abusive actions. Told me he will beat me and kick my
‘—’”
I also find the investigation into Vargas’ allegations against Hernandez suffer from the same flaws
as described above for Munoz. Again, we are asked to
believe that Matheu genuinely concluded Hernandez
should be fired based on a report from Vargas of
undated comments Hernandez ostensibly directed
only at him, which Matheu, along with the labor consultants hired to keep out the Union, elicited at know
antiunion employee Rosas’ home, with no input from
Hernandez or his first-line supervisor.
Vargas did not testify, and therefore the only
firsthand account in the record is his statement,
54 Tr. 934
55 Tr. 912.
56 Tr. 1058.
App.103a
which says, “Pedro the Machinist. He is telling the
new people that if they are going to vote, to vote for
the union. He spends his time conversing with
them.”57 I assign more weight to Vargas’ own statement than to Matheu’s hearsay interview notes
about what Vargas said.
The Respondent’s shifting explanations are indi
cative of pretext. The only internal Wismettac document in evidence shows Hernandez was terminated because the contract with Ranstad ended. Fujimoto told
Meza from Ranstad that Hernandez was terminated
due to his performance/behavioral issues and operational changes. No operational changes were identified
other than Matheu’s decision to lay off the dayshift
employees and keep the nightshift employees, which
obviously doesn’t hold up in Hernandez’ case. At the
hearing, Matheu testified Hernandez was terminated
because he created a hostile environment, was offensive, and refused to help other employees. Yet neither
Vargas’ statement nor Matheu’s notes reference any
refusal to help other employees.
The disparate treatment Hernandez received, as
the only nightshift employee singled out for
termination on October 31, also points to pretext. His
immediate termination, with no history of discipline,
also is a marked departure from the progressive
discipline Wismettac practiced with its other employees, which is strong evidence of pretext.58 Keller
57 The General Counsel requests an adverse inference regarding Vargas’ failure to testify. (GC Br. 145.) I agree that this is
warranted, but it does not impact my decision.
58 The record contains numerous examples of this; A representative sample is contained in GC Exhs. 2–4. Though Wismettac’s
App.104a
Manufacturing Co., 237 NLRB 712, 714 (1978). “Such
discrimination, without plausible explanation by Respondent coupled with its hostility to the Union, gives
rise to the inescapable inference that [the employee]
was discharged and barred from reemployment in
reprisal for his union activities and to discourage
union membership and support among the employees, in violation of Section 8(a)(3) and (1).” Fayette
Cotton Mill, 245 NLRB 428 (1979).
Based on the foregoing, I find the proffered
reasons for Hernandez’ termination was pretext to
mask unlawful antiunion motivation, and the General Counsel has proved the allegations in complaint
paragraph 9.
6. Alberto Rodriguez written warnings,
suspension, and termination
Complaint paragraph 10 alleges that the Respondent issued Rodriguez a written warning on
December 21, 2017, suspended him on February 2,
2018, and terminated him on February 16, 2018, in
violation of Section 8(a)(3) and (1). The complaint
was amended at the hearing to include a written
warning issued to Rodriguez on January 31, 2018.
a. The arbitration agreement
The Respondent asserts that Rodriguez agreed to
arbitrate all employment-related claims and therefore
his termination should be resolved by arbitration. (R
Exh. 2.) In Prime Healthcare Paradise Valley, LLC,
handbook states the progressive discipline system is discretionary,
the evidence shows a practice of progressive discipline except in
extreme cases.
App.105a
368 NLRB No. 10 (2019), the Board held that the
employer’s arbitration agreement violated Section
8(a)(1) of the Act by restricting employees’ access to
the Board and its processes. The Respondent is
urging a reading of Wismettac’s arbitration agreement as precluding Board charges. As such a reading
is unlawful, the Respondent’s argument is rejected.
b. The December
warning
21,
2017
written
Rodriguez’ December 21, 2017 written warning
stated he rejected requests from coworkers to help
them bring merchandise down from the top shelves,
employees expressed concern that Rodriguez was
watching and monitoring them while working, and
he called a coworker “stupid” and “idiot.”
The Wright Line paradigm applies. It is undisputed Rodriguez engaged in Union activity. Prior
to the first election, Rodriguez spoke with employees,
visited their homes, and collected authorization cards
for the Union. He also regularly wore a union T-shirt,
and was part of the August 21 delegation. I find the
Respondent knew Rodriguez supported the Union.
Anti-union animus has been established, as detailed
above. Accordingly, the General Counsel has established the initial Wright Line burden.
The burden now shifts to the Respondent “to
demonstrate that the same action would have taken
place even in the absence of the protected conduct.”
Wright Line, supra, at 1089. The Respondent contends
th
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