Appendix B — Cornelio v. National Labor Relations Board (No. 08-134)

348 NLRB No. 4, 180 L.R.R.M. (BNA) 1401, 2006 WL

2559841 (N.L.R.B.)

NATIONAL LABOR RELATIONS BOARD

(N.L.R.B.)

*1 PHOENIX PROCESSOR LIMITED

PARTNERSHIP

AND

BRADLEY BAGSHAW

19-CA-28831

August 31, 2006

DECISION AND ORDER

BY CHAIRMAN BATTISTA AND MEMBERS

LIEBMAN AND SCHAUMBER

On February 4, 2005, Administrative Law Judge

Lana H. Parke issued the attached decision. The

Respondent, General Counsel, and the Charging

Party each filed exceptions and supporting briefs.

The Respondent and Charging Party also filed

answering briefs, and all parties filed reply briefs in

response to answering briefs.!

The National Labor Relations Board has considered

the decision and the record in light of the exceptions

and briefs and has decided to affirm the judge's

rulings, findings,? and conclusions? only to the extent

consistent with this Decision and Order.‘

The judge found that the Respondent violated

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Section 8(a)(1) of the Act by discharging 23 fish

processors® for engaging in a work stoppage on board

a ship. The judge found that the employees were not

seamen, and thus their concerted failure to obey the

order of the captain and factory manager to return to

work was not a violation of maritime law, which

violation would privilege the Respondent to

discharge them under Southern Steamship Co. v.

NLRB, 316 U.S. 31 (1942). Contrary to the judge, we

find, as explained below, that the processors were

seamen.® As such, they were not entitled to engage in

a concerted shipboard work stoppage (see Southern

Steamship) and therefore their discharges did not

violate the Act as alleged.7

I. BACKGROUND

The Respondent operates the 680-foot Ocean

Phoenix, a ship that operates in the Bering Sea and

processes pollock into a food product called surimi.

The Respondent's processors worked in the ship's

factory, operating machinery that stores, sorts, cuts,

freezes, and packs the product. The ship operates

during certain parts of the year, divided into “A” and

“B” seasons. Prior to 2003, processors worked 16-

hour shifts during “A” season.

In January 2003,° after the Respondent's ship left

port at the beginning of “A” season, the Respondent's

factory manager Pat Hermens held a meeting with

all the processors to review company policies. At this

meeting, Hermens told the processors that they

would be working an extra half hour that season,

extending their normal shifts from 16 to 16.5 hours.

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Once the extended schedule was implemented, some

of the processors began discussing their dislike of the

longer 16.5-hour shift. Thereafter, a _ petition,

addressed to Hermens, was circulated among the

processors. The petition expressed the processors’

concern about the longer shift, and requested that

they return to working a 16-hour shift. It was signed

by 70 employees. The processors believed that the

petition was delivered to the ship's purser (the

captain's top administrative official) sometime in late

January. The record, however, does not establish to

whom the petition was delivered. The record does

show that Hermens never saw the petition.

*2 On February 2, the processors had some

downtime due to a temporary lack of fish. After

cleaning machinery, a group of processors-having

heard nothing from Hermens regarding their

petition-composed an anonymous letter about the

16.5-hour work schedule, entitled “Voice of the

People.” Processor Luis Verduzco, Sr. gave the letter

to a foreman, who gave it to Hermens. Hermens was

enraged by the letter. Verduzco was directed to come

to Hermens' office, where Hermens demanded to

know “what is the meaning of this” and “who wrote

this.” Verduzeo gave no information in response.

Hermens told Verduzco that he was willing to meet

with the employees and discuss the issue when he

had time. However, the judge found that no specific

meeting time or date was set.

At that soint, the ship had received more fish, and

Hermens was set to begin a series of meetings that

preceded the restart of the factory. The processors,

however, had been told by Verduzco that Hermens

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would meet with them, and they asked foreman

Estrada if they could meet with Hermens

immediately. The processors understood Estrada to

have told them that Hermens would meet with them

immediately, but Estrada understood that he had

only told the processors that assistant factory

manager Evan Rafferty would speak to Hermens

about setting up a meeting. Based on their belief that

Hermens was ready to meet with them,

approximately 25 employees left the factory.!9

Thereafter, Rafferty informed Hermens that several

processors had left the factory, and Hermens

instructed him to make arrangements to replace the

departed processors and start up the factory.

Afterwards, Rafferty encountered the group of

processors in a hallway and told them they were

fired. Rafferty told them to take off their gear and to

go to the library and wait.

Hermens then asked Captain Marc Smith to go to

the library and speak to the processors. Smith went

to the library and told the processors to return to

work. The processors, however, remained in the

library, in response, Smith had them sign their

names on a sheet and told the processors that he

considered them to have quit. Smith then returned to

Hermens and they discussed the situation, after

which they both went back to the library. Smith and

Hermens both told the processors that they should go

back to work, that their concerns would be discussed

when there were no fish to process, and that if they

returned to work immediately, there would be no

penalty. Except fer two or three who then returned to

work, the processors refuséd to return to work,

insisting they would remain there to discuss the shift

schedule with Smith and Hermens. The processors

who remained were told by Smith that they had quit.

The next day, the ship detoured to Dutch Harbor,

Alaska, where the processcrs were put ashore. Their

separation notices stated that they “quit” and were

not eligible for rehire.

Concerning the reason for the _ processors'

termination, Captain Smith testified without

contradiction that “a group of close to 25 individuals

that are familiar with the ship that are obviously,

unhappy ... could very easily become a serious

situation.”

Il. THE JUDGE'S DECISION

*3 The judge found that the Respondent violated

Section 8(a)(1) by discharging the processors on

February 2 for engaging in a protected, concerted

work stoppage. In so finding, the judge found the

instant circumstances distinguishable from those in

Southern Steamship Co. v. NLRB, 316 U.S. 31

(1942), which held that seamen engaged in a

concerted shipboard work stoppage were not

protected by the Act because their conduct violated

federal maritime law. The judge found that, unlike

the crew in Southern Steamship, the Respondent's

processors were not seamen because they were not

directly involved in the operation of the vessel.

Accordingly, the judge found that they were not

prohibited by maritime law from engaging in a

concerted work stoppage, and thus their resulting

discharge violated the Act.

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III. CONTENTIONS OF THE PARTIES

All the pasties except to the judge's finding that the

processois wer: not seamen. The parties disagree,

however, whether the refusal of the processors to

return to work was protected by Section 7 of the Act.

The Respondent contends that because the

processors were seamen, their refusal to return to

work violated maritime law, and thus, under

Southern Steamship, supra, their conduct was not

protected by the Act. The General Counsel contends

that, although the processors were seamen, they

were nonetheless unlawfully discharged by Rafferty

for their protected, concerted activity. After they

were discharged, according to the General Counsel,

they ceased to be seamen, and thus their subsequent

failure to return to work after the discharge could

not have violated maritime law. Lastly, the Charging

Party contends that the processors' work stoppage

was protected Section 7 activity because it did not

constitute the type of mutinous behavior that

violated maritime law in Southern Steamship. Thus,

the issues presented by the parties’ exceptions are (a)

whether the processors were seamen, (b) whether

they were discharged by Rafferty prior to their

concerted refusal to return to work,'! and (c) if they

were not discharged by Rafferty, whether the

processors’ work stoppage was protected under the

Act.

For the following reasons, we find that the

Respondent's processors were seamen, that they

were not discharged by Rafferty, and that their

concerted work stoppage was not protected under the

Act.

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IV. ANALYSIS

A. Seaman Status

We agree with the parties that the processors were

seamen. In Chandris v. Latsis, 515 U.S. 347, 368

(1995), the Supreme Court stated that, in order to be

a seaman, an individual “must contribute to the

function of the vessel or to the accomplishment of its

mission,” and “must have a connection to a vessel in

navigation ... that is substantial in terms of both its

duration and nature.” In other words, the employee

must “do the ship's work.” Id. “This element of the

Chandris test for seaman_ status’. broadly

encompasses many individuals who would not

ordinarily be thought of as a seaman.” FJC:

Admiralty and Maritime Law 91 (2004) (citing

Mahramas v. American Export Isbrandtsen Lines,

Inc., 475 F.2d 165 (2d Cir. 1973); see also Benedict on

Admiralty, 7th Ed. (1990) Vol. 1B, pp. 2-28-2-35

(table of cases indicating seaman status for, e.g.,

bartenders, cooks, dancers, maids, and handymen).

*4 It is thus apparent that courts, whose duty it is to

interpret maritime law, have defined seamen to

include a broad range of shipboard employees.

Applying this standard, we find that the record

establishes that the processors were seamen. The

function of the Ocean Phoenix was to process fish,

and the processors performed this function

continuously. Further, the processors’ connection to

the vessel while in navigation was substantial in

duration and nature, as evidenced by the fact that

they lived and worked aboard the ship while it was

at sea. In finding that the processors were not

seamen, the judge relied on the fact that the

processors did not operate the vessel. However,

under Chandris and the well-developed law noted

above, this fact does not remove an individual from

the definition of a seaman. As noted, a seaman “must

contribute to the function of the vessel or to the

accomplishment of its mission” (Emphasis added).

Thus, we find, in agreement with all the parties, and

contrary to the judge, that the processors were

seamen under maritime law.

B. Alleged Discharge Before the Work Stoppage

We next turn to the issue of whether the processors

were discharged by Rafferty. According to the

General Counsel, even though the processors were

seamen, they had not engaged in a work stoppage

when Rafferty fired them. Although the General

Counsel does not clearly state what their protected

concerted activity was, we infer that the General

Counsel contends that the protected concerted

activity consisted of the employees' leaving the

factory on the belief that they were to meet with

Hermens. Thus, according to the General Counsel,

they were unlawfully discharged, and ceased to be

seamen. Under this theory, because the terminated

processors were no longer seamen subject to

maritime law, their refusal to return to work could

not have violated maritime law.!2 In support of this

position, the General Counsel contends that

Rafferty's statement to the processors that “you're

fired” would “reasonably lead the employees to

believe that they had been discharged.” Kolkka

Tables & Finnish-American Saunas, 335 NLRB 844,

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846 (2001) (quoting NLRB v. Hilton Mobile Homes,

387 F.2d 7, 9 (8th Cir. 1967). The General Counsel

acknowledges, however, that an employer who

initially leads employees to believe that their

employment has been terminated may disavow such

statements or clarify that the employees are, in fact,

still employed. Kolkka Tables, supra at 847. We find

that statements made subsequent to Rafferty's did,

in fact, clarify that the processors were still

employed.

As noted above, immediately after Rafferty made his

“you're fired” comment, both Smith and Hermens

told the processors that they could return to work

with no penalty. Thus, even assuming that the

processors reasonably believed Rafferty's statement,

“you're fired,” any such belief would have been

dispelled once Smith and Hermens informed the

processors that they could return to work with no

penalty. Indeed, these assurances by Smith and

Hermens demonstrate that there was “no reasonable

basis for finding that anyone was discharged” by

Rafferty. Pink Supply Corp., 249 NLRB 674 fn. 2

(1980). Further, the fact that two or three processors

did return to work with no penalty also demonstrates

that the processors understood that they had not

been fired by Rafferty. Accordingly, we find the

Respondent did not terminate the processors prior to

their concerted work stoppage. It follows that there

was no unlawful discharge and that they remained

seamen.

C. Applicability of Southern Steamship

*5 Having found that the processors were seamen

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and subject to maritime law, and having further

found that the processors were not discharged prior

to refusing to return to work, we now address

whether the processors’ refusal to return to work was

protected by Section 7 of the Act. As stated above,

the seminal case concerning whether a _ work

stoppage of seamen is protected by Section 7 of the

Act is Southern Steamship, supra. In that case, the

crew went on strike while the ship was loading at the

dock. The employer discharged the strikers for

refusing to obey the captain's order to return to work,

but the Board found the discharge violated the Act

and ordered them reinstated. 23 NLRB 26 (1940).

The Supreme Court held, however, that the Board

had no authority to reinstate the employees in these

circumstances. The Court held that the strike was in

violation of maritime law because the seamen

engaged in mutiny and incitement of mutiny when

they disobeyed the captain's order to return to work.

316 U.S. 31 at 48. The Court thus found “that the

strike was unlawful from its very inception.” Id.

In this case, the processors, like the crewmen in

Southern Steamship, were seamen and, as such,

subject to maritime law which establishes the

necessity of following an order to return to work. The

processors, like the Southern Steamship crew,

engaged in a concerted work stoppage aboard the

ship, were told to return to work, and subsequently

refused. Thus, the operative facts in this case are

indistinguishable from those oof Southern

Steamship.!3 In that case, the refusal of the seamen

to return to work was not protected by Section 7 of

the Act. Because the processors here engaged in

essentially the same activity as the crewmen in

Southern Steamship, their concerted work stoppage

was also unprotected. !4

The dissent attempts to distinguish Southern

Steamship on a number of grounds. First, the dissent

asserts that Southern Steamship is inapplicable

because the employees here did not sign shipping

articles (which include an agreement to obey

superior officers) and, as at-will employees, they are

categorically different from the striking employees in

Southern Steamship. We disagree. As noted above,

all parties to this case agree that these employees

are seamen. As such, they are subject to maritime

law. Thus, we find the absence of shipping articles in

this regard not controlling. Indeed, the presence or

absence of shipping articles is irrelevant to the

NLRA case. What is relevant is whether the

employees' conduct was protected under Section 7 of

the NLRA. That issue, in turn, must be considered in

the context of other federal laws, e.g. maritime laws.

This is not to say that maritime laws dictate the

NLRA answer. We simply find, on balance, that the

policies of those laws, i.e. to compel seaman to obey

lawful orders from their supervisors, outweigh the

policies of the NLRA.

*6 In any event, the processors did sign employment

agreements, which, like shipping articles, contain

essential terms of employment.!5 Indeed, these

contracts impose a requirement to obey the ship's

officers, as did the shipping articles in Southern

Steamship.'* In addition, the dissent's reliance on

the at-will status of the processors is beside the

point. The “at will’ relationship permits an employer

to terminate the employment for lawful reasons, and _

it permits an employee to terminate the relationship

for lawful reasons. It does not render the employees

protected under the NLRA, and it does not forbid an

employer from discharging the employees for

unprotected conduct under the NLRA.

The dissent, like the Charging Party, also contends

that the processors were never ordered to return to

work, but rather were only asked to do so, and thus

they did not refuse to obey a lawful order. We

disagree. As noted above, there is no doubt that

Smith and Hermens told the employees that their job

duties required them to end their work stoppage and

return to the factory. For example, Smith testified: “I

mean, from the very beginning, it was, go back to

work and I phrased it every possible way you could

phrase it, to get them to go back to work.” Hermens'

notes of the meeting state that he told the processors

“that they had left work without permission,” and

that “he was not going to be held hostage” by the

processors’ demands. Thus, regardless of whether

they used the word “order,”!7 Smith and Hermens

made clear that in order to remain employed, the

processors had to return to work.

On another issue, the dissent cites a case to support

the contention that seamen may engage in protected

shipboard work stoppages while at sea. That case,

Pantex Towing Corp., 258 NLRB 837 (1981), is

clearly distinguishable. Pantex concerned a tugboat

that was docked at the bank of Mobile Bay, where

the tugboat crew of four, including the captain,

engaged in a work stoppage in order to gain

recognition of a union. When the employer showed

up and demanded that crew members leave the boat,

the crew members left. One of the crew was

subsequently discharged. The Board, adopting the

judge's recommended finding that the work stoppage

was protected, distinguished Southern Steamship

and found there was no evidence any employee had

defied the employer. Rather, when told to do so, the

employees left the tugboat. Here, by contrast, the

employees refused multiple directives to return to

work. Thus, the defining act of Southern Steamship

and this case, a seaman's refusal to obey a directive

to return to work, is absent from Pantex.

*7 The dissent further suggests that because there is

no evidence that the Respondent took steps to impose

maritime discipline under maritime law, the Board

should not “entertain” the Respondent's defense that

the discharges were lawful. We disagree. As stated

above, no party contends that the processors were

entitled to disobey the Respondent's directive to

return to work. Further, we note that in Southern

Steamship, there was no evidence of any discipline

under maritime law, either. Thus, the existence of

evidence of maritime discipline, or the lack thereof, is

not a controlling fact in determining whether the

processors’ conduct was unprotected.

Finally, the dissent's contention that we are applying

Southern Steamship broadly, reflexively, and in a

way that cuts off important rights of employees

misses the mark. We agree with the dissent that

Southern Steamship does not require that the Act

always yield to other federal statutes. However, the

necessary accommodation between the Act and

maritime law that arises in the context of shipboard

work stoppages was resolved long ago in Southern

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Steamship. in this case, with the same material

facts, we are bound by the Supreme Court's clear

precedent. Accordingly, we find that the Respondent

did not violate the Act when it discharged the

processors for refusing to return to work, and we

dismiss that portion of the complaint.

ORDER

The National Labor Relations Board orders that the

Respondent, Phoenix Processor Limited Partnership,

Seattle, Washington, its officers, agents, successors,

and assigns, shall

1. Cease and desist from

(a) Coercively interrogating employees about their

protected, concerted activity within the meaning of

Section 7 of the Act.

(b) Discharging employees because they engaged in

protected, concerted activity within the meaning of

Section 7 of the Act.

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

Ulysses Nieto and _ Sebastian Cortez full

reinstatement to their former jobs or, if those jobs no

longer exist, to substantially equivalent positions,

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without prejudice to their seniority or any other

rights or privileges previously enjoyed.

(b) Make Ulysses Nieto and Sebastian Cortez 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 remedy section of the judge's

decision.

(c) Within 14 days from the date of this Order,

remove from its files any references to Nieto's and

Cortez' discharges, and within 3 days thereafter

notify them in writing that this has been done and

that the discharges will not be used against them in

any way.

*8 (d) Preserve and, within 14 days of a request, or

such additional time as the Regional Director may

allow for good cause shown, provide at a reasonable

place designated by the Board or its agents, all

payroll records, social security payment records,

timecards, personnel records and reports, and all

other records, including an electronic copy of such

records if stored in electronic form, necessary to

analyze the amount of backpay due under the terms

of this Order.

(e) Within 14 days after service by the Region, post

at its facility in Seattle, Washington, copies of the

attached notice marked “Appendix.”!8 Copies of the

notice, on forms provided by the Regional Director

for Region 19, after being signed by the Respondent's

authorized representative, shall be posted by the

Respondent immediately upon receipt and

maintained for 60 consecutive days in conspicuous

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places including all places where notices to

employees are customarily posted. 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

February 2, 2003.

(f) Within 21 days after service by the Region, file

with the Regional Director a sworn certification of a

responsible official on a form provided by the Region

attesting to the steps that the Respondent has taken

to comply.

Dated, Washington, D.C. August 31, 2006

Robert J. Battista

Chairman

Peter C. Schaumber

Member

1 The Respondent has requested, pursuant to Reliant

Energy, 339 NLRB 66 (2003), that a copy of an

unpublished decision of the Washington State Court

of Appeals, Cornelio v. Premier Pacific Seafoods,

Case No. 54445-4-1, May 23, 2005, a case stemming

from the relevant events here, be inserted into its

Brief in Support of Exceptions. We find the request

to be in compliance with Reliant Energy, and shall

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accept the copy of the decision. However, having

considered the decision, we find that it does not

constitute persuasive authority. Two of the issues

involved in Cornelio, breach of contract and a federal

statutory claim concerning insufficient terms of

compensation in a maritime contract, have no

bearing on the issues presented in this proceeding.

The other issue in thet case, whether the processors

were wrongfully discharged because they protested

unsafe working conditions in violation of public

policy, is not relevant because it does not address

whether the processors' protest might constitute

protected, concerted activity under Sec. 7 of the Act.

2 The Respondent, General Counsel, and Charging

Party have excepted to some of the judge's credibility

findings. 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 (8d Cir. 1951). We have

carefully examined the record and find no basis for

reversing the findings.

3 We shall amend the judge's conclusions of law to

delete an inadvertent finding with regard to “the

Union,” as there is no union involved in this case.

4 We shall modify the judge's recommended Order

and Notice to more closely reflect the violations

found and to conform to the Board's standard

remedial language.

5 The judge amended the complaint to add the names

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of two imdpiduals who were not named in the

original complaint, but whom the judge found were

part of the group of 23 discharged employees. The

Respondent has excepted to this amendment,

arguing that the record does not indicate whether

these two individuals were similarly-situated to the

other 23. Because we find that the 23 employees

were not unlawfully discharged, we find it

unnecessary to reach the issue of whether the

amendment was proper.

6 Although the General Counsel and Charging Party

agree with the judge that the discharges violated the

Act, like the Respondent, they except to the judge's

finding that the processors were not seamen.

7 We adopt the judges’ findings of other violations. In

adopting the judge's finding that the Respondent

violated Sec. 8{a)(1) by discharging employee Ulysses

Nieto for engaging in protected concerted activity, we

note that the Respondent has not argued that Nieto

was discharged for lying to his foreman about the

reason he went to his quarters. We further note that

the Respondent's performance-related justifications

for Nieto's discharge are contradicted by Nieto's

highly favorable performance evaluation and

otherwise unsupported by the record. In adopting the

judge's finding that employee Sebastian Cortez was

discharged for engaging in protected concerted

activity, we note that the record shows that the

Respondent clearly understood that Cortez had been

ta.king to other employees about wages and hours,

and discharged him to prevent any further such

discussions among employees.

8 All dates are in 2003, unless stated otherwise.

% In adopting the judge's finding that Hermens

unlawfully interrogated Verduzco, we note that the

Respondent does not argue that Hermens' conduct in

this regard was privileged under maritime law.

10 The judge did not resolve this discrepancy between

what the processors testified Estrada told them and

what Estrada testified he told them. Rather, the

judge found that a misunderstanding occurred. The

General Counsel argues that the judge should have

credited testimony that Estrada told the processors

that Hermens would meet with them immediately.

Because we find below that the processors were not

fired and could have returned to work with no

penalty, we find it unnecessary to pass on the

General Counsel's argument.

11 The General Counsel does not contend that the

Act's protections extend to seamen engaged in a work

stoppage while at sea.

‘2 In light of our finding below that the processors

were not terminated by Rafferty for engaging in

protected, concerted activity, we find it unnecessary

to pass on whether this is a correct statement of

maritime law.

13 No party contends that maritime law allows a

seaman to disobey the lawful order of the master of a

vessel. See 46 USC § 11501; 18 USC § 2192; and 18

USC § 2193.

14 Prior Board cases that found seamen's conduct

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protected are clearly distinguishable, as none of them

concerned an outright refusal to return to work. See

Sea-Land Service, 280 NLRB 720 (1986), enf. denied,

837 F.2d 1387 (5th Cir. 1988) (finding unlawful

interrogation when captain demanded to know why

employee had sought information regarding the

Board's regional office while the employee made

routine radio transmission); Pantex Towing Corp.,

258 NLRB 837 (1981) (finding unlawful discharge of

tugboat employee on strike, noting absence of any

evidence that employees disobeyed tugboat master)

(discussed further below); Mr. Vernon Tanker Co.,

218 NLRB 1423 (1975), enf. denied, 549 F.2d 571

(9th Cir. 1977) (finding violation for failure to allow a

Weingarten witness during disciplinary meeting).

15 Maritime law requires that “the owner, charterer,

or managing operator, or a representative thereof,

including the master or individual in charge, of a ...

fish processing vessel ... shall make a fishing

agreement in writing with each seaman employed on

board” 46 U.S.C. § 10601 (a).

16 The processors' ugreements stale they “will

perform such duties at the direction of the employer,

Master, Manager, Supervisor or other person

designated by the owner or Master.”

17 Contrary to the dissent's contention, the fact that

Smith and Hermens told the processors at one point

that they “could” go back to work clearly was not to

minimize the Respondent's insistence that the

processors return to work, but rather to underscore

that they were still employees and would not be

disciplined if they ended their work stoppage. They

did not do so.

18 Tf 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.”

*9 MEMBER LIEBMAN, dissenting in part.

The employer here discharged 25 workers who

walked off the 30b to meet with management and

explain their objections to a lengthened work day: a

work day now sixteen-and-a-half hours long. Had the

work stoppage in this case occurred on land, the

protections of the National Labor Relations Act

clearly would have applied and the _ workers'

discharge would have been illegal.! Instead, however,

the work stoppage took place aboard a ship, a

floating fish-processing factory. The majority finds no

violation, concluding that federal maritime law-

which generally requires seamen to obey their

superiors’ orders-overrides Federal labor law. Unlike

the majority, I do not believe that the Supreme

Court's Southern Steamship decision? compels this

result.

The Board has previously observed that “Southern

Steamship did not hold that the antimutiny statute

prohibits the application of the Act in a maritime

setting.” Sea-Land Service, 280 NLRB 720, 721 fn. 5

(1986), enf. denied, 837 F.2d 1387 (5th Cir. 1988).

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The Sea-Land Board cited the Supreme Court's own

observation that Southern Steamship did not require

the National Labor Relations Act to _ yield

automatically to other Federal statutes. Rather, as

the Supreme Court has said, the Board must make

an “independent inquiry into the requirements of its

own statute.” Local 1976, United Brothe: hood. of

Carpenters v. NLRB, 357 U.S. 93, 111 (1958).

Accommodation of two Federal laws thus may

require compromise in both directions. In Southern

Steamship, the Board had argued that federal

maritime law was entirely irrelevant to its authority

to remedy the unfair labor practice in the case. The

Supreme Court rejected this view, instead requiring

the “careful accommodation of one statutory scheme

to another.” 316 U.S. at 47 (emphasis added).

Accordingly, the Board has paid close attention to

the facts of Southern Steamship in deciding how to

apply our statute at sea. In Pantex Towing,‘ for

example, the Board found that a shipboard stnke

was protected by the Act, rejecting the employer's

argument that it amounted to mutiny. The Board

adopted the decision of the administrative law judge,

who distinguished Southern Steamship on its facts,

observing that the strikers there “had intended to

wrest control of the vessel from those in lawful

command.” 258 NLRB at 844.

*10 In Southern Steamship, a divided Supreme

Court explicitly found that a strike had violated the

Federal mutiny statutes (part of the criminal code),

because crew members-who had signed “shipping

articles” under which they agreed to obey their

superior officers- “[djeliberately and persistently ....

B-22

“> an

he

defied direct commands to perform their duties in

making [the ship] ready for departure from port;” in

other words, crew members “did what they could to

prevent the ship from sailing.” 316 U.S. at 38-41.

The facts here are very different from Southern

Steamship. First, the striking fish-processors had

never signed shipping articles. Instead, the

processors' contracts included an at-will employment

clause, explained to them by the Respondent as

meaning “that either the company or the employee

can terminate employment with or without cause,

and with or without notice.” This at-will status would

seem to distinguish the processors from the articled

members of a ship's crew. It also calls into question

the applicability of the maritime statutes upon which

the majority relies to find the work stoppage

unprotected.5

Second, it is not at all clear that the processors were

ever given an actual order to return to work, rather

than simply being offered the opportunity to return

to work if they wished. Under cross-examination, the

ship's captain (Smith) admitted that he understood

that, as at-will employees, the processors had a right

to quit, and once that right was exercised (as he

believed it had been), he lacked authority to order

them to perform their duties. Neither the notes of the

captain, nor those of the factory manager (Hermens)-

prepared soon after the incident- mention ordering

the processors to return to work. Instead, the notes

state the processors were told that “they could return

to work,” either with or without penalty for their

participation in the work stoppage. Factory manager

Hermens admitted, consistent with his testimony at

B-23

a prior unemployment-compensation hearing, that “I

can't testify that I told them” to go back to work.

Here, the processors' alleged violation of the

maritime statutes was an affirmative defense to the

unfair labor practice charges. In Pantex Towing,

supra, the Board demanded “clear and convincing

proof’ of such a violation. Such proof is missing from

the record in this case. The majority, then, is much

too quick to conclude that the “processors here

engaged in essentially the same activity as the

crewmen in Southern Steamship.” The processors

had not signed shipping articles, and they did not

“deliberately and_ persistently def[y] direct

commands,” in the words of the Southern Steamship

Court.

*11 It is telling that no steps were ever taken by the

Respondent, or by any legal authority, to impose

maritime discipline against the processors. No

adjudicator, except the Board today, has ever found

them guilty of an offense. And given the apparent

failure of the Respondent to comply with the

procedural requirements for imposing maritime

discipline, it is not clear that the Board should even

entertain the Respondent's defense. See 46 U.S.C. §

11502(d) (where vessel's officers fail to make entry in

logbook detailing offense, a “court may refuse to

receive evidence of the offense” in-a “subsequent

legal proceeding’).

Certainly, there are limits to the Act's protection of

strikes.? In applying established, general principles

to concerted activity at sea, we must take into

account the unique environment that a_ ship

B-24

represents and the challenges involved in its

operation-i.e., the factors that inform maritime law.

Nevertheless, where a brief, peaceful shipboard work

stoppage involves employees who play no role at all

in navigation, and where those employees do nothing

to interfere with the work of the crew or otherwise to

cause imminent danger to the operation of the ship,

we should find the strike protected.

Southern Steamship has been sharply criticized for

restricting the labor-law rights of seamen, in favor of

an older, harsher legal regime and for undercutting

application of the National Labor Relations Act in

other contexts where it intersects with potentially

competing federal statutes. We are bound by that

decision, nevertheless. But we are not required, as

the majority does, to read the decision broadly or to

apply it reflexively. The Boaid has rejected such an

approach before, and it should do so here.

Accordingly, I dissent.

Dated, Washington, D.C. August 31, 2006

Wilma B. Liebman

Member

1 See, e.g., Accel, Inc., 339 NLRB 1052 (2003)

(spontaneous work stoppage by assembly line

workers to protest denial of scheduled work break

was protected).

2 Southern Steamship Co. v. NLRB, 316 U.S. 31

(1942).

3 I concur in the majority's finding that the

B-25

Respondent violated Sec. 8(a)(1) by interrogating

employee Luis Verduzco Sr. and by discharging

employees Ulysses Nieto and Sebastian Cortez. I also

concur with the majority that, contrary to the judge's

finding, the employees involved here were seamen

for the purposes of Federal maritime law. All the

-parties agree on this point.

4 Pantex Towing Corp., 258 NLRB 837 (1981).

5 The mutiny statutes, notably, apply to “the crew of

a vessel.” 18 U.S.C. §§2192, 2193. Other offenses, in

turn, would seem to be entirely precluded by at-will

status, for example, desertion, absence without leave,

and quitting the vessel without leave. See 46 U.S.C.

§§11501(1), (2), (8). |

The majority views the “at will” status of the

processors as irrelevant. But it apparently was

not irrelevant to the Respondent. The record

suggests that the Respondent. viewed the

processors as a distinct, and troublesome, group,

given their suspected propensity for concerted

activity. In an e-mail sent after the processors'

petition was circulated, but prior to the work

stoppage, factory manager Hermens observed

that there were “a number of folks that we think

we will be sending home mid trip” and that they

would be replaced with a “diverse group of

Midwestern folks.” (The processors were largely

Hispanic.) The “at will” status of the processors, it

seems, allowed the Respondent to contemplate

“sending home” employees “mid trip” without

legal or operational repercussions.

6 Indeed, the facts are analogous to those considered

B-26

in Pantex Towing. There, the only order given to the

striking seaman (with which he immediately

complied) was “if you are not going to move the boat

or barge, you will have to get off the barge and the

boat.” 258 NLRB at 841. The judge in Pantex

analyzed the situation by explaining’ that

“[ajJssuming that [the owner] was tendering the

option to [the seaman] that he either take [the boat]

upriver or leave the boat, [the seaman's] election of

the latter alternative fails to rise to that of

disobedience since it was mere exercise of an option

accorded by [the owner].” Id. at 843. The processors

here likewise obeyed the Respondent's decision to

remove them from the ship, once they made clear

their decision to stop working.

7 See generally NLRB v. Washington Aluminum Co.,

370 U.S. 9, 17 (1962) (Act does not protect concerted

activity that is “unlawful, violent or in breach of

contract” or is otherwise “indefensible”). The Board,

for example, has found strikes unprotected when

striking employees fail to take reasonable

precautions to protect the employer's operations from

imminent danger foreseeably resulting from their

sudden cessation of work. See, e.g., International

Protective Services, 339 NLRB 701, 702-704 (2003)

(unprotected strike by security guards at Federal

buildings). See also Bethany Medical Center, 328

NLRB 1094, 1095 (1999) (protected strike by

catheterization laboratory employees).

8 See Ahmed A. White, Mutiny, Shipboard Strikes,

and the Supreme Court's Subversion of New Deal

Labor Law, 25 Berkeley J. Emp. & Lab. L. 275

(2004).

B-27

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR

RELATIONS BOARD

An Agency of the United States Government

*12 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 coercively question employees about

their protected concerted activity within the meaning

of Section 7 of the Act.

WE WILL NOT discharge employees because they

engage in protected concerted activity within the

meaning of Section 7 of the Act.

WE WILL NOT in any like or related manner

interfere with, restrain, or coerce you in the exercise

of the rights guaranteed you by Section 7 of the Act.

B-28

WE WILL, within 14 days from the date of this

Order, offer Ulysses Nieto and Sebastian Cortez 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 make Ulysses Nieto and Sebastian Cortez

whole for any loss of earnings and other benefits

resulting from their discharge, less any net interim

earnings, plus interest.

WE WILL, within 14 days from the date of the

Board's Order, remove from our files any reference to

the unlawful discharges of Ulysses Nieto and

Sebastian Cortez, and WE WILL, within 3 days

thereafter, notify each of them in writing that this

has been done and that the discharges will not be

used against them in any way.

PHOENIX PROCESSOR LIMITED PARTNERSHIP

Joann Howlett, Atty., for the General Counsel.

David Bratz and Gail M. Luhn, Attys. (LeGros,

Buchanan, & Paul), of Seattle, Washington, for the

Respondent.

Bradley H. Bagshaw, Atty., of Seattle, Washington,

for the Charging Party.

B-29

DECISION

I. STATEMENT OF THE CASE

LANA H. PARKE, Administrative Law Judge.

This matter was tried in Wenatchee, Washington, on

October 26 through 29, 2004,1 and in Seattle,

Washington, on November 8 and 9, 2004, upon

complaint and notice of hearing (the complaint)

issued June 24, 2004, by the Regional Director for

Region 19 of the National Labor Relations Board (the

Board) based upon charges filed by Bradley H.

Bagshaw, attorney (the Charging Party), and upon

amendment to the complaint issued October 7, 2004.2

The complaint, as amended, alleges Phoenix

Processor Limited Partnership (Respondent) violated

Section 8(a)(1) of the National Labor Relations Act

(the Act). Respondent essentially denied all

allegations of unlawful conduct.

IT. ISSUES

1. Does the Board have subject matter and personal

jurisdiction over Respondent?

2. Does Federal Maritime Law preempt Board

consideration of the complaint issues?

*13 3. Did Respondent violate Section 8(a)(1) of the

Act by interrogating employees about their concerted

protected activities?

4. Did Respondent terminate employees because they

engaged in concerted protected activities and to

B-30

discourage other employees from doing likewise?

II. JURISDICTION

Respondent, a State of Washington corporation, with

an office and place of business in Seattle,

Washington, has, at all relevant times, been engaged

in the business of seafood processing. During the 12-

month period prior to the hearing, a representative

period, Respondent annually sold and shipped goods

or provided services valued in excess of $50,000 to

customers inside the State of Washington, which

customers were themselves engaged in interstate

commerce by other than indirect means. Respondent

admits, and I find, it has at all relevant times been

an employer engaged in commerce within the

meaning of Section 2(2), (6), and (7) of the Act.

On the entire record,® including my observation of

the demeanor of the witnesses, and after considering

the briefs filed by counsel for the General Counsel,

the Charging Party. and Respondent, I make the

following

IV. FINDINGS OF FACT

A. Commencement of Respondent's 2003 “A” Season

Respondent operates the S/S Ocean Phoenix (the

Phoenix), a 680-foot steam-driven vessel operating

primarily in the Bering Sea. The Phoenix serves as a

floating fish-processing factory, the base for a small

fleet of trawlers, which delivers its catch (primarily

Pollack) to the Phoenix. After delivery to the ship,

fish undergo an “aging” process in water tanks for a

period of 5 to 9 hours depending on factors such as

fish size. After the fish are aged, depending on the

time of year, factory employees extract Pollack eggs

(roe), process the Pollack into Surimi, a fish paste or

cake with preservatives, and store the product for

later delivery to othér processing plants that may

subsequently turn it into such fish products as

imitation crab. During processing aboard the

Phoenix, the fish are moved from one processing

stage to another by conveyors, and the end product is

ultimately boxed and stacked in walk-in freezers.

The proczss from initial stage to freezer takes about

2 hours. ry

The Phoenix makes two processing voyages, or

“seasons” a year. “A” season, in which roe are

harvested, begins in mid-late January and lasts

about 60-90 days or until the company fills its

harvest quota. “B” season begins in late summer and

lasts until mid-late fall, or until that season's quota

is filled.4 Prior to the 2003 “A” season, processing

employees during the “A” season worked, as

necessary, 7 days a week in 16-hour shifts with a

one-half hour lunchbreak, mid-shift, and two 15-

minute breaks, pre and postprandial. During the “B”

season, in which the work is less labor intensive than

in the “A” season, processing employees work 12-

hour shifts.

Respondent compensates its hourly processing

employees through a formula based on production or

by a guaranteed base rate. The formula provides for

payment of a unit rate for each metric ton of frozen

product. The unit rate is set at the beginning of each

voyage. The employee share, expressed in percentage

B-32

points, varies depending on the type of product and

increases with employment longevity. If, at the end

of a voyage, compensation based on production (the

production wage) is greater than the base wage,

Respondent pays the production wage.

*14 Prior to the 2003 “A” season, Respondent decided

to increase the “A” season factory shifts by one-half

hour, making each shift 16-1/2 hours in duration.

Respondent notified former processing employees by

letter of its projected start date for the 2003 “A”

season -but said nothing of the prospective shift

duration increase.' Individuals desiring employment

went to Respondent's Seattle office where they

signed an employment contract before boarding the

Phoenix. Inter alia, the contract for the relevant

period provided:

1. DUTIES. Employee shall perform his/her

duties as requested by the owner, whether

written or oral, in connection with the ship's

operating and processing activities ... at the

direction of the employer, Master, Manager,

Supervisor or

2. other person designated by the owner or

Master .... Failure to perform any of the duties

as assigned may result in disciplinary action

up to and including termination.

3. CERTIFICATION OF PHYSICAL

CONDITION. Employee understands that

working conditions aboard the ship are

difficult, strenuous and sometimes hazardous

and that working hours are often long.

Employee has considered these factors before

making a decision to accept this employment.

B-33

Employee represents and warrants to the best

of his/her knowledge, that he/she is physically

and mentally prepared and able to perform all

assigned work for the term of this agreement

and that all statements contained in the

medical forms furnished are true and accurate

in all respects.

15. GOVERNING LAW/FORUM. The parties

agree that this contract shall be interpreted

and enforced in accordance with maritime law

of the United States of America, and that the

venue for any lawsuit arising from or related

to Employee's employment by owner, including

but not limited to claims for wages, violation of

state and/or federal laws, including laws

against discrimination and/or harassment, and

also including claims arising under the Jones

Act or maritime law, for transportation,

maintenance and cure, damages or otherwise,

arising out of or in any way connected with

any event, happening, injury, disability and/or

illness occurring to and/or sustained by

employee while employed aboard the vessel

shall be only in U.S. District Court, Western

District of Washington at Seattle, or the King

County Superior Court, State of Washington

at Seattle. ...

The 2003 “A” season work commenced while the

Phoenix was docked in Seattle, where processing

employees worked 12-hour shifts for several days

loading and preparing the vessel for the season. At

all relevant times, the following individuals in the

following respective positions, served aboard the

Phoenix as supervisors within the meaning of Section

2(11) of the Act and/or agents of Respondent within

the meaning of Section 2(13) of the Act:6

Marc Smith (Capt. Smith)-Ship's Captain

Pat Hermens (Mr. Hermens)-Factory Manager

Evan Rafferty (Mr. Rafferty)-Assistant Factory

_ Manager

*15 Oscar Octaviano (Mr. Octaviano)-Foreman

Jose Estrada (Mr. Estrada)-Foreman

Juan Aldana (Mr. Aldana)-Foreman

Jose Rojas (Mr. Rojas)-Assistant Foreman’

Esteban Berrera (Mr. Berrera)-Assistant

Foreman

At all times relevant, the foremen and assistant

foremen had 12-hour shift responsibility for

processing employees. Accordingly, processing

employees answered to two supervisors during their

16-1/2-hour shifts.

B. Respondent's Change of Working Conditions and

Employee Response

A day or two after the Phoenix left Seattle for Alaska,

Hermens met with the factory crew and informed

them they would be working shifts lengthened by

one-half hour.® At that time, no processing employee

protested the change or availed himself cf the

following problem-review procedure set forth in the

employee information booklet with which all

employees were provided:

Discuss your problem or concerns with your

immediate supervisor, foreperson or manager. If

you feel your supervisor is not responsive, you

have the right to appeal to higher levels of

supervision, ultimately to the Captain.

If your problem cannot be resolved on board the

vessel, you may contact the Premier Pacific office

in Seattle, which will! serve as final authority.

After some days of working the additional one-half

hour, the processing employees discussed their

dissatisfaction with the longer shifts among

themselves; several spoke to Rojas, day-shift

assistant foreman, of their concerns that the

lengthened shifts caused increased fatigue and

consequent safety hazards. Several employees also

protested to Rojas that the changed schedule

prevented their being occasionally assigned to work 4

hours per shift on the “gut line,” a less arduous duty

post. Rojas spoke to Hermens and Octaviano about

employees' concerns. Octaviano told Rojas to leave

matters as they were, which Rojas reported to

employees.

Following Rojas' response, in late January,

processing employees circulated and obtained at

least 66 employee signatures on the following

petition (the petition) addressed to Hermens:

Pat,

We have been most upset with the 16.5-hour

shift. During the signing of our contracts we were

informed that our shift would be 16 hours long.

That leaves us with 8 hours to sleep, eat, take a

shower, brush teeth, shave, et cetera. Taking

away 30 minutes or 1/16 of our time off has had a

drastic effect on our ability to perform our duties

at work and afterwards. If you were to restore our

30 minutes, I think you would find that your crew

would be more refreshed to work harder and

finish the season successfully. We are ali more

than willing to pull together to see that no one

has to work more than 16 hours in a day.

Rojas observed employees signing the petition; he

told Octaviano of the petition and that employees

seemed unhappy-probably about the added one-half

hour. He recommended that management talk to

employees. Octaviano told Rojas not to worry about

it. Several days prior to February 2, in a staff

meeting, the ship's medic told Captain Smith that a

petition was circulating among the processing

employees presumably having to do with the

extended shifts. Captain Smith told the medic that

the ship was not a democracy and did not do business

by petition. Employees Luis Verduzco Jr. and Noel

Cornelio reported to employees that they had given

the petition to the ship's purser, who said she would

give it to Hermens.? Although both Captain Smith

and Hermens heard rumors of an employee petition,

neither saw it nor spoke to the processing employees

regarding it.

C. February 2 Termination of Processing Employees

*16 On February 2, decreased fish delivery to the

Phoenix caused a lull in processing. As usual, during

the processing downtime, Rojas directed the dey-shift

processing employees to perform a thorough machine

and factory cleanup. At about 4 p.m., Respondent

estimated that processing would commence at 7 p.m.,

B-37

and Rojas planned completion of cleaning to

accommodate a 7 p.m. processing start time.

Thereafter, seriate postponements to 8 p.m. and to 9

p.m. were announced.!9 During the waiting period,

employees discussed the fact that Respondent had

not responded to the petition and composed another

document entitled, “The Voice of the People” (the

Voice of the People letter), which read:

We have heard that you (management can't come

with a conclusion about the 16 hrs. So we have

come with the conclusion to work 17 hrs. if all

[foremen], assistant foreman, surimi techs and

the rest of the 12 hrs. shift personnel works 17's

also. But not working in the office, they should

work in the factory like the rest of the processors.

In the Toyo's, case up, freezer, plates, etc. We feel

that is not fair for us /t/he people [who] are

working being on our 16 hrs. for office

management to just be sitting around, when we

can't have enough time to rest, and be ready for

the next day. You expect us to work harder and

get the job done faster, well with more people

“experienced” people like, assistants, foreman, etc.

we can do the job better, go home faster, and not

feel left out to do everything by ourselves. Do not

blame the people for what is happening. Blame

the management 16 1/2.

We need an answer as soon as possible either by

today or first thing in the morning.

Sin. The people.

Shortly before 7:30 p.m.,!! Luis Verduzco Sr. gave

the Voice of the People letter to Octaviano and asked

him to give it to Hermens. Octaviano left the area,

B-38

and a few minutes later summoned Luis Verduzco

Sr. to the office. When he arrived, Luis Verduzco Sr.

found Hermens, Aldano, Rafferty, and Singer

present. Hermens had the Voice of the People letter

in his hand and, with Octaviano interpreting, asked,

“What is the meaning of this?”

Luis Verduzco Sr. said it was a letter from the

people. Hermens asked who had written the letter.

When Luis Verduzco Sr. repeated that “the people”

had, Hermens asked if Luis Verduzco Sr. was sure

his son had not written it, which Luis Verduzco Sr.

denied. Luis Verduzco Sr. declined to tell Hermens

who had authored the letter “because[he] knew [Mr.

Hermens was looking for someone to be guilty.”

Hermens denied he had asked who wrote the letter,

saying he had only inquired as to whom he should

talk about it, although he admitted that Luis

Verduzco Sr. “did not want to tell [him] ... who had

written [the letter].” I credit the account of Luis

Verduzco Sr., whose testimony Octaviano essentially

corroborated. Additionally, Rafferty testified that

Hermens was enraged by the letter and sought to

ascertain its author because he wanted

accountability. Hermens directed Rafferty to find out

who the “ringleaders” were, which further supports

Luis Verduzco Sr.'s testimony that Hermens

attempted to glean the same information from him.

*17 According to Luis Verduzco Sr., Hermens said he

would make time to speak to the employees.

Hermens testified that be only expressed a

willingness to talk about the employees’ issues when

the factory did not have fish to process. After

consideration of the surrounding circumstances as

B-39

well as the witnesses' demeanor, I find that Hermens

did not agree to meet with the protesting employees

at that time but only at some indefinite, future

occasion. I also find that Luis Verduzco Sr. believed

in good faith that Hermens intended to meet with

the employees that evening.

Luis Verduzco Sr. returned to the employees and told

them that Hermens had agreed to speak to them.

The employees asked Estrada, who had replaced

Rojas as supervisor at about 7:50 p.m.,!” to see if

Hermens had time to speak to them at that time.

According to Luis Verduzco Sr., Estrada returned

with a message to the employees that management

was waiting for them in the office. Estrada testified

that he only reported to the workers that Rafferty

was going to speak to Hermens and said nothing

about any meeting. Nonetheless, the workers said

they were all in agreement and would go together,

whereupon they left the work area. I find it

unnecessary to resolve what Estrada told employees

regarding a meeting with Hermens. While it is clear

Hermens did not intend to meet with employees at

that time, it is equally clear employees sincerely

believed they had been directed to meet with the

manager immediately. In short, a misunderstanding

occurred, even though its source remains obscure.

Approximately 25-30 employees (protesting

employees) left the factory work areas and proceeded

to the office.

Estrada then called Rafferty and told him some of

the workers wanted to speak to Hermens. Rafferty

asked if it looked like a strike, and Estrada said he

did not know. Rafferty said to get the factory ready to

B-40

go at 9 p.m., and he would speak to Hermens.

Rafferty told Hermens a number of workers had

walked out of the factory and were demanding a

meeting with him. Hermens directed Rafferty to take

the necessary steps to start the factory with

uninvolved factory workers and substitute workers,

such as engineers, mechanics, and employees who

would normally perform the tail end of processing.

As Rafferty set about manning the factory, he

encountered about 25 of the protesting employees

congregated in a passageway. According to

employees Luis Verduzco Sr., Asuncion Aguirre, and

Gabriel Garibay, Rafferty told them to remove their

work clothes!’ and go to the library; he said aii of

them were fired and that he did not lose anything,

rather they were the losers. Rafferty denied telling

employees they were fired. According to Rafferty, he

only told the group to return to work and directed

those who refused to do so to go to the library and

not leave it except for restroom use, on pain of

termination. The employee witnesses who testified as

to what Rafferty said were consistent and

unequivocal in their accounts, and | accept their

testimony. While the protesting employees made

their way to the library, Aldano passed by, carrying a

box of new work goggles for distribution to those

employees who would replace the protesting machine

operators. Alfonso Lopez jokingly said, “Hey, I'll

trade you these [goggles].” Aldano refused, saying the

new goggles were for the new machine operators. As

directed, the employees went to the library,

assuming they had been fired.

*18 While the employees were assembling in the

lhbrary, Hermens asked Captain Smith to meet with

B-41

him in his office, saying he believed workers had

walked off the job. When Hermens and Captain

Smith met, they agreed that Captain Smith would

talk to the employees in the library while Hermens

and Rafferty reassigned employees and made

arrangements to start production. Witnesses were

not fully consistent as to the sequence of

managerial/employee meetings that took place

thereafter or as to what was said in which meeting.

The following description of events is an amalgam of

the most consistent and reliable testimony.

Captain Smith spoke to employees in the library and

encouraged them to return to work. He told them

their conduct was inconsistent with the problem

review procedure set forth in the employee handbook

and was not the way to raise employee concerns.

Captain Smith reminded Juan Lovos that when a

work stoppage among employees had occurred 2

years earlier, Respondent had told them the

complaint procedures to follow.'4 Captain Smith said

he would talk with them about their concerns later

when the factory was out of fish. When employees

did not return to work, Captain Smith considered

they had quit and told them so. He directed them to

sign their names on an attendance paper, and the

following employees signed:

Ramon Mendez

Jose Cervantes

Winston Brown

Jorge Camacho

Fermin Taisacan

Maurisio Ramirez

Baltazar Gonzalez

B-42

Sergio Velasquez

Alfonso Flores Lopez

Jose Cabrera

Jose Luis Corona!5

Joel M. Camacho

Asuncion Aguirre

Ruben Ruiz

Miguel Martinez

Luis Verduzco

Luis J. Verduzco Sr.

Gabriel Garibay

Ricardo Cuevas

Cesar Nieto

Juan Lovos

Noel A. Cornelio

Arturo Leon

Jose Luis Deigadillo

Alberto Rodriguez!

[Juan Carlos Reyes and Bradley Monaco!’

After Captain Smith spoke to the employees in the

library, he met again with Hermens for a strategy

discussion. The two men ‘elieved the protesting

employees had walked off the job (and hence “quit”)

and were attempting to hold the factory “hostage.”

According to Captain Smith, Respondent was willing

to discuss the shift length concern with the

employees, but timing was a major issue: “We

wanted to [discuss the matter] after we cut fish, so

we did not suffer any more economic loss.” Hermens

and Capt. Smith decided not to discuss work issues

with the protesting employees before the employees

returned to work, as they did not want to encourage

the idea that walking off the job was a proper way to

resolve employee concerns. They further concluded

B-43

that employees with more seniority had a greater

responsibility for the employees' conduct as they

served as mentors for newer employees and were

more highly paid. The senior employees would not be

permitted to return to work without penalty. The two

managers decided they would divide the protesting

employees into two groups based on seniority, and

they would decline to discuss the extended shift issue

but would agree to meet with employees when a lull

in production occurred.

*19 After agreeing on a course of action, Hermens,

Captain Smith, and Octaviano went to the library.

Hermens told the protesting employees they had

walked off the job. The employees disagreed, saying

Hermens had directed them to talk to him. Hermens

told employees he had not called any meeting;

employees who thought he had were under a

misunderstanding. Hermens said he did not lke

being held hostage and would discuss the half-hour

shift increase with them at a later time. He offered to

let the employees return to work without penalty and

told them if they did not return to work, Respondent

would assume they had quit. Cesar Nieto said the

employees were not going to quit, that Hermens

would have to fire them. Hermens said, “The

outcome will be the same; you won't work here.”

After about 30-45 minutes, Hermens divided the

group, sending leadmen and employees with greater

seniority to the TV room. When selected employees

had left for the TV room, Hermens told the library

group they had 10 minutes to get back to work. The

employees said they wanted to talk about the 16-1/2-

hour shifts. Hermens looked at his watch and told

B-44

the employees that he did not want to talk about the

shift length and that they had only 8 minutes left in

which to return to work. The employees continued to

request a discussion, and Hermens said, “If you guys

don't go back, you are done.” Hermens left, telling

the employees that when he returned, he would

“finalize this.”

When Hermens left the library, he went to the TV

room and told that group he would give them 8

minutes to return to work. Even if they chose to

return to work, he would reduce their crew share

percentage by .5 percent and later deduct 10 percent

from their final compensation. Hermens considered

the pay reduction to be a form of disciplinary action.

After absenting himself from the TV room for 8

minutes, Hermens returned, looked at his watch, and

left without speaking.'!® Except for the three

employees noted above, none of the employees

returned to work. The group in the TV room rejoined

the group in the library.

When processing employees quit or are terminated,

in Hermens' words, “they ... are no longer my

responsibility. The Captain takes care of them

knowing what they should and should not do, as a

person who is no longer employed on the Phoenix, but

[who is still aboard].” Having determined that the

protesting employees were no longer employed by

Respondent, Hermens turned the matter over to

Captain Smith. Captain Smith, knowing he was

“incapable of handling such a large group of people

that potentially were going to be very unhappy,”

decided to make an unscheduled port call at Dutch

B-45

Harbor, Alaska, and debark the protesters. Captain

Smith returned to the library and told the workers to

get their belongings together because they were

“done.” Captain Smith explained certain restrictions

as to when and where on the ship the alleged

discriminatees could -go during the time they

remained aboard. The group was comprised of the

following employees, hereinafter called “the

terminated employees”:

*20 Asuncion Aguirre (aka Aguirre Asuncion)

Winston Brown

Jose Cabrera

Joel Camacho

Jorge Camacho

Jose Cervantes

Noel Cornelio

Ricardo Cuevas

Jose Luis Delgadillo

Gabriel Garibay

Baltazar Gonzalez

Juan Lovos

Miguel Martinez

Brad Monaco

Caesar Nieto

Maurisio Ramirez

Juan Reyes

Ruben Ruiz

Luis Verduzco Sr.

Luis Verduzco Jr.

Sergio Velasquez

Arturo Leon!®

Alfonso Lopez

The following morning, February 3, Captain Smith

B-46

again spoke to the group of workers, requesting them

to sign separation papers saying they had voluntarily

quit. When the workers demurred, Captain Smith

told them that if they did not sign, he would drop

them off at the nearest port, Dutch Harbor, Alaska,

without providing for motel rooms or transportation

to Seattle. The employees refused to sign, insisting

they had not quit. After a radio consultation with

Respondent's human resource department, Captain

Smith relented.

When on the morning of February 3, Rojas learned

employees he supervised had been terminated the

previous evening, he asked Octaviano if he could talk

to them to get them to return to work. Octaviano

refused, saying Hermens had already taken care the

matter.

Sometime during the morning of February 3, Arturo

Leon told Hermens he had not understood what had

transpired during the meetings of the previous night

and asked to return to work. Hermens said he did

net believe him and wished him a “nice life.”

Respondent gave each terminated employee a

Separation Notice, which noted the following:

Reason for Contract Termination-Quit

Eligible for Rehire?-NO

On the evening of February 3, the terminated

employees debarked at Dutch Harbor, Alaska, where

they were provided with funds and air transportation

to Seattle. Respondent had experienced no

behavioral problems with the group during the

period of walkout through debarkation.

B-47

A few days following February 3, Hermens held a

meeting with the remaining factory employees. He

told them that some workers had tried to hold the

company hostage and to force him to do what they

wanted. He said he did not like that. He asked by a

show of hands, which employees wanted to work the

16-1/2-hour shifts, and all employees raised their

hands. On about February 9, Respondent replaced

the terminated employees.

D. Termination of Ulysses Nieto

Respondent's handbook prohibits sleeping on the job:

GENERAL WORK RULES

You are expected to comply with [the General

Work Rules], as defined by the following list....

Violators are subject to discharge, or lesser

disciplinary action, depending upon the gravity of

the offense as determined by the Owner, for the

following infractions:

7. Sleeping while on duty.

During the Phoenix's voyages, it was a common

practice for processing workers to sneak into their or

other employees’ rooms during worktime to nap. The

workers sometimes exchanged room keys to foil

detection, relying on other workers to warn them

when supervisors began searching for them.

Respondent's normal practice was to warn employees

for a first offense.

*21 Following the events of February 2, Hermens

B-48

wanted to get rid of the “spies” among the employees,

hoping thereby to avoid recurring strikes. Hermens

believed many of the troublemakers came from the

Washington town of Wenatchee, and he wanted to

get rid of Wenatchee residents as well.

Ulysses Nieto (Nieto), resident of Wenatchee and

brother to Caesar Nieto who was terminated on

February 2, remained on the ship after the

terminated employees disembarked in Dutch Harbor.

In the days after February 2, Nieto discussed with

other employees the increased work demands

necessitated by the shortage of workers Certain

employees decided to ask for a raise. On February 15,

several spoke to Rojas and requested a meeting with

Hermens. Later that day, during a cleaning period,

employees met with Hermens and Captain Smith in

the library. Nieto spoke for the workers, explaining

that employees believed the increased work and

shorter breaks were unfair and hazardous and

complaining that Rafferty pushed the employees too

hard. He asked for raises.

Hermens told the employees that at end of the trip

he would figure out who would get a raise for the

next trip and how to reward employees- Hermens

agreed to increase the crew share percentage for two

employees, one of whom was Nieto. The employees

expressed dissatisfaction with the plan but returned

to work.

Upon returning to his cleaning work, Nieto felt ill

and went to his room to get aspirin without

informing his supervisor, Rojas, who did not notice

he had left. While in his room, Nieto fel] asleep on

B-49 ~

the floor for 20 minutes. During that time, Estrada

notified Rafferty that Nieto, whom he had been

seeking for 10-15 minutes, was missing from the

work area.2° Rafferty walked through the factory

without finding Nieto. Suspecting Nieto was in his

room, Rafferty went there and found him asleep on

floor. Although Hermens was the only manager with

authority to discharge processing employees,

Rafferty told Nieto he was fired because he knew

Hermens would fire him when he learned he had

been sleeping on the job. Thereafter, Hermens

approved Nieto's discharge.

There is no evidence Respondent bad ever warned

Nieto about sleeping on the job prior to February

15.21 Although Rafferty testified that Nieto had “an

extensive history of missing on shift,” that he had

orally warned him for sleeping on a pile of sugar, and

that Nieto was “always on the verge of being in

trouble,” I cannot accept his testimony. Nieto's last

performance evaluation for “A” season of 2002, which

was approved by Rafferty, shows him to have earned

9 “excellent” ratings out of 10 in such areas as

“positive attitude,” “follows directions,” “

work promptly after breaks,” and “works rapidly.”

Written evaluation comments note Nieto to have

been “one of the best, very motivat{ed] and active

person ... one I depend [on] to show good production

because he cares about the job.”

E. Termination of Sebastian Cortez

*22 Cortez did not testify, but Hermens' testimony

along with evidence contained in emails generated by

Hermens provide the facts surrounding Cortez’

B-50

returns to .

discharge. After February 2, Cortez talked to other

employees about his dissatisfaction with the wages

paid by Respondent and his belief that he could make

more money under less severe working conditions on

another catcher/processor boat. When Hermens

learned of Cortez' interchanges with other

employees, he asked Cortez not to spread his

unhappiness. When Cortez was again observed

“being unhappy,” Hermens “completed” Cortez’

contract (i.e., terminated him midcontract) on

February 16. Hermens explained his motivation in

an email to Respondent's human resources office

dated March 13:

I completed [Mr. Cortez'] contract because he was

quite unhappy here and rather vocal about his

unhappiness and how he thought he could [make]

much more money with an easier schedule

elsewhere. He told me that he did not want to go

home that he wanted to stay. It was the wrong

time to keep a malcontent on board.

V. DISCUSSION

A. Jurisdiction

Respondent contends that the Board lacks

jurisdiction to afford relief to the terminated

employees as “seamen” have no right under the Act

to engage in the concerted activity of a work stoppage

on a vessel in operation on the seas, the governance

of which maritime law controls. On August 30, 2004,

Respondent filed with the Board a motion to dismiss

the complaint, contending that the protesting

employees’ actions were tantamount to criminal

B-51

conduct under 18 U.S.C. §§ 2192 and 2193, which

prohibit revolt or mutiny. By. order dated October

20, 2004, the Board denied Respondent's motion

stating that Respondent bad “failed to establish that

there are no genuine ig~ues of material fact and that

it is entitled to summary judgment as a matter of

law.” At the hearing, Respondent again moved to

dismiss the complaint on grounds that the Board

lacks jurisdiction over the subject matter herein. The

Board has asserted jurisdiction over employers

engaged in fish processing at sea. Employees

Negotiating Committee (Western Boat Operators,

Inc.), 177 NuURB 754 (1968); American Freezerships,

Inc., 185 NLRB 1113 (1962); Pacific American

Fisheries, Inc., 124 NLRB 9 (1959). Further, for the

reasons set forth below, I find the Board has

jurisdiction to review Respondent's actions herein

and to remedy any violations found.

B. Alleged Violations of Section 8(a)(1) of the Act

1. Interrogation

Respondent's processing employees engaged in

protected concerted activities within the meaning of

Section 7 of the Act when they discussed their

objections to Respondent's one-half-hour extension of

their work shifts, prepared the “Voice of the People,”

and, on February 2, presented it to factory manager,

Hermens, and sought a meeting with him to discuss

their grievances. See NURB uv. City Disposal Systems,

Inc.. 465 U.S. 822, 831 (1984). Respondent argues

that application of Bourne v. NLRB, 332 F.2d 47, 48

(2d Cir. 1964), exculpates Hermens' questioning of

Luis Verduzco Sr. as to who had prepared the protest

B-52

letter. However, Hermens' interrogation does not

meet the Bourne requirements that the employer

have a valid purpose in seeking the information,

which purpose the employer communicates to the

employee. Here, Hermens' purpose, as explicated by

the testimony of Rafferty, was to ascertain the ring-

leaders behind the letter in order to hold them

accountable, and that unlawful purpose was clearly

understood by Luis Verduzco Sr. who testified that

he knew Hermens was “looking for someone to be

guilty.” In these circumstances, Hermens engaged in

unlawful interrogation of Luis Verduzco Sr. in

violation of Section 8(a){1) of the Act. See Guess?,

Inc., 339 NLRB 432 (2003).

2. February 2 termination of fish processors

*23 The General Counsel alleges in the complaint

that Respondent terminated 21 of the protesting

employees for engaging in protected concerted

activities and by so doing violated Section 8(a)(1) of

the Act. Although Respondent has consistently

characterized the terminations as voluntary quits, by

telling the terminated employees on February 2 that

they were “done,” by informing them that

Respondent considered them to have quit, and by

noting their ineligibility for rehire, Respondent

clearly discharged them. Matador Lines, Inc., 323

NLRB 189 fn 2 (1997); Indian Hills Care Center, 321

NLRB 144, 154 (1996) (assertion that an employee's

conduct constitutes a resignation or quit suggests the

employer regarded conduct and _ continued

employment to be incompatible).

The General Counsel failed to include in the

complaint the names of Sergio Velasquez and Arturo

Leon who participated in the same concerted

protected activity and received the same

consequences as the 21 alleged discriminatees. The

General Counsel did not name the two employees

because they had inadvertently been omitted from

the group listed in the unfair labor practice charges

herein, and the General Counsel did not become

aware of the omission until after the 10(b) period had

elapsed. 22

Notwithstanding the General Counsel's failure to

seek amendment of the complaint to include the

names of Sergio Velasquez and Arturo Leon, I find it

appropriate to consider the legality of Respondent's

conduct toward all protesting employees who were

terminated on February 2. “It is well settled that the

Board may find and remedy a violation even in the

absence of a specified allegation in the complaint if

the issue is closely connected to the subject matter of

the complaint and has been fully litigated.[citations

omitted].” Atlantic Veal & Lamb, Inc., 342 NLRB 418

fn. 5 (2004). The issues regarding the terminated

employees were fully litigated, and Respondent's

motivation was the same as to all of them. My

otherwise untimely inclusion of Sergio Velasquez and

Arturo Leon as discriminatees is appropriate as their

terminations are inextricably connected to the timely

alleged terminations of the alleged discriminatees,

involve the identical underlying legal theory and

factual situation, and are subject to the same

employer-raised defenses. Redd-I, Inc., 290 NLRB

1115, 1118 (1988); Precision Concrete, 337 NLRB 211

(2001). See also Peng Teng, 278 NLRB 350 fn. 2

(1986) (Board left to compliance stage determination

B-54

of identities of two individuals inadvertently omitted

from the complaint). Accordingly, I have considered

whether Sergio Velasquez and Arturo Leon along

with the 21 alleged discriminatees were unlawfully

terminated as alleged in the complaint.

*24 Prior to their work stoppage of February 2,

Respondent's employees discussed shift length

dissatisfaction, drafted a protest petition and a

protest letter, and sought a meeting with

management. All of those actions were protected and

concerted.23 Any discipline, including termination, of

employees for engaging in such protected concerted

activities violates Section 8(a)(1) of the Act. Accel,

Inc., 339 NLRB 1052 (2003). However, Respondent

did not discipline any employee because they

engaged in any of the enumerated, protected

activities. While it is true Rafferty explicitly and

Aldana implicitly told the protesting workers they

were fired, their statements do not establish

discharge. Neither Rafferty nor Aldana had

authority to terminate any employee, and Hermens

and Captain Smith's later statements to the

protesting employees make it clear that Respondent

had no intention, at least initially, of firing the

protesting employees. Although Hermens was clearly

angered by the employees’ conduct in pressing for a

discussion about their extended shift hours,

Respondent repeatedly urged the _ protesting

employees to return to work without incurring any

penalty.. There is no evidence to suggest that the

employees' tenure of employment would have been

affected in any way had they returned to work when

directed to do so. Accordingly, I find Respondent did

not terminate, or otherwise discipline, any of the

processing employees on February 2 for discussing

with one another their 16-1/2-hour shifts, drafting

the petition and the protest letter, seeking a meeting

with management, or any other protected, concerted

activity they may have engaged in prior to refusing

to return to work.

When the protesting employees refused to return to

work as directed by Respondent until they had aired

their grievance over increased shift hours, they

engaged in a work stoppage or a strike. Had the work

stoppage herein occurred among factory employees in

a shoreside setting, there is no question it would

have been protected under the Act. In Benesight,

Inc., 337 NLRB 282 (2001), unrepresented customer

service employees protested newly imposed work

procedures by ceasing to take customer calls “until

they could get a resolution of their problem from

management.” Supra at 286. The Board held that

when an in-plant work stoppage is peaceful, is

focused on a specific job-related complaint, and

causes little disruption of production by those

employees who continue to work, emplovees are

“entitled to persist in their in-plant protest for a

reasonable period of time [citation omitted].” Supra

at 282. See also Accel, Inc., supra (employees who

walked off their assembly line to protest the

employer's denial of a scheduled work break engaged

in protected activity). Here, the protesting employees

sought a discussion with management of a term and

condition of their employment, engaged in no

insubordinate or disruptive behavior, did not attempt

to set their own conditions of employment, and in no

way interfered with Respondent's operations or

production, except insofar as their absence from

B-56

processing lines made labor adjustments necessary.

Consequentiy, the employees’ work stoppage fits

within the rights enumerated in Section 7 of the Act

and constitutes concerted, protected activity. NLRB

v. Washington Aluminum Co., 370 U.S. 9 (1962).

*25 There is no dispute as to the actions Respondent

took in response to its employees’ concerted work

stoppage:

1. After initial discussion with the protesting

employees on February 2 and following their

refusal to return to work, Respondent divided

them into two groups comprised, respectively,

of more and less senior employees. Respondent

once more gave each group at short time to

exercise the option of returning to work, but

this time Respondent informed the more

senior employees that a penalty in the form of

reduced compensation would be imposed. The

proposed penalty constituted discipline for

senior employees' participation in and

encouragement of newer employees to

participate in the protest.?4

2. When the protesting employees declined

Capt. Smith and Mr. Hermens' call to return

to work, Respondent terminated them rather

than simply removing them from the work

situs, which Respondent was entitled to do

when the employees refused to work and

which Respondent did on the following day.

Respondent agrees “the charging parties here had

every right to ... petition for their mutual aid or

protection, and to express their dissatisfaction with

the terms and conditions of their employment, so

B-57

long as they did not violate the NLRA.” It follows

that if the employees’ work stoppage were protected

by the Act, then Respondent's termination of

employees violated Section 8(a)({1) of the Act.

Respondent's position, however, is that the Act does

not protect the work stoppage because it occurred on

an ocean-going vessel at sea where the charging

parties could not “usurp the Master's authority at

sea, even if the Master's action would constitute an

unfair labor practice on land.” Respondent argues

that the work stoppage and Respondent's responses

to it are covered by federal maritime law and not by

the Act.25

The Board has acknowledged that employment in the

maritime industry “is uniquely subject to pervasive

regulation by Federal maritime statutes, and that

the Act often must be accommodated to those

statutes. [Citations omitted].” Exxon Shipping Co.,

312 NLRB 566, 567 (1993). One such statute decrees

that a seaman's willful disobedience to a lawful

command at sea constitutes criminal conduct; 46

U.S.C. § 11501(4) reads in pertinent part as follows:

When a seaman lawfully engaged commits any of

the following offenses, the seaman shall be

punished as specified:

(4) For willful disobedience to a lawful command

at sea, the seaman, at the discretion of the

master, may be confined until the disobedience

ends, and on arrival in port forfeits from the

seaman's wages not more than 4 days' pay or, at

the discretion of the court, may be imprisoned not

more than one month.

B-58

In Southern Steamship Co. v. NLRB, 316 U.S. 31

(1942), the United States Supreme Court held that

seamen aboard a ship anchored in the Houston,

Texas, harbor who were discharged for engaging in a

strike while on board the vessel had engaged in

conduct violative of maritime mutiny statutes and

therefore were engaged in criminal conduct

unprotected by the Act. See also U.S. Bulk Carriers

v. Arguelles, 400 U.S. 351 (1971) (employer not

entitled to compel arbitration of seaman's wage claim

pursuant to collective-bargaining agreement in light

of provisions of Federal maritime law granting

seamen right to bring such actions in court) and Mt.

Vernon Tanker Co. v. NLRB, 549 F.2d 571 (9th Cir.

1977) (seaman's rights under Weingarten”® do not

exist during ship's voyage). Respondent argues that

the Board “lacks authority to apply the protections of

the NLRA in such a way as to unlawfully interfere

with the operations of a vessel at sea for to

contravene] the master's exclusive right ... to

command the vessel and govern the actions of the

seamen.” Respondent is accurate ints statement of

the law, but it is not clear that the processing

employees herein are “seamen,” or that their duties

are analogous to those of the seamen in Southern

Steamship Co., supra, or other cases cited above, so

as to deny to them the coverage of the Act and to

require application of maritime law to their

concerted activity.

*26 The Supreme Court has defined “seamen” in

Jones Act?’ cases, stating “It is not necessary that a

seaman aid in navigation or contribute to the

transportation of the vessel ... a seaman must be

B-59

doing the ship's work ... the requirement that an

employee's duties must ‘contribut[e] to the function

of the vessei or to the accomplishment of its mission’

captures well an important requirement of seaman

status.” McDermott International, Inc. v. Wilander,

498 U.S. 337, 355 (1991). In Chandris, Inc. v. Laitsis,

515 U.S. 347, 376 (1995), the Court held that the

ce

employment-related connection to a vessel in

navigation” necessary to qualify as a seaman under

the Jones Act, comprises two basic elements: “The

worker's duties must contribute to the function of the

vessel or to the accomplishment of its mission, and

the worker must have a connection to a vessel in

navigation ... that is substantial in terms of both its

duration and its nature [citation omitted].”

An argument could be made that any work

performed aboard a vessel contributes to the function

or the mission of the vessel and that any worker

aboard a vessel who is connected, e.g., employed by,

the vessel has a work connection to the vessel. If

those premises were accepted, all individuals

employed by a vessel aboard the vessel would be

“seamen,” and any work stoppage aboard a vessel,

whether in harbor or on the open sea, would

contravene the vessel's mission. Further, under that

view, any work stoppage uncountenanced or

forbidden by the ship's captain or master would be

mutinous and unprotected by the Act. Following this

line of reasoning to its logical conclusion, employers

whose production can be performed shoreside may

cut off their employees from vital Section 7

protections by locating their operations aboard a

vessel in navigation. However, neither the Supreme

Court nor any other forum has ever expressed such a

B-60

view,28 and there are significant factual distinctions

between Southern Steamship Co., supra, and the

instant case to militate against such a conclusion.

In Southern Steamship Co., supra, the employees

whose work stoppage was at issue had work duties

directly related to the operation of the vessel. In Mt.

Vernon Tanker Co., supra, the employee who pressed

his Weingarten rights was employed as chief

pumpman of the vessel, also a job directly related to

the operation of the vessel. As found by the Court in

Southern Steamship Co., the crew refused the

captain's order to return to work, refused to leave the

ship to make way for a replacement crew, and one

striking crew member. threatened an engineer that

he would be sorry if he tried to turn on the deck

steam himself. While the strikers “did not engage in

violence or prevent the other men and officers from

proceeding with preparations for the voyage ... they

did what they could to prevent the ship from sailing.”

Southern Steamship Co., supra at 40-41. As a

practical matter, the Court found, the strikers

wrested control of the vessel from its officers.

Southern Steamship Co., supra at 47.

*27 The employee/employer relationships focused on

in Southern Steamship Co. and Mt. Vernon Tanker

Co. differ significantly from those in this case. The

protesting workers herein labored only in the ship's

fish-processing factory and had no responsibility for

the operation or movement of the ship. Although

Captain Smith had ultimate responsibility for- the

entire vessel, an entirely different supervisory chain

oversaw the factory employees' work than that which

oversaw the work of the seamen operating the

B-61

vessel.29 The employees' February 2 work cessation

was neither intended to nor did it prevent the ship

. from functioning as an ocean-going vessel, and

Captain Smith became involved in the work stoppage

at the request of factory manager, Hermens. Captain

Smith was not present in post-February 2 meetings

between the factory workers and Hermens, and there

is no evidence he had any input into resolution of

their complaints. Thus, unlike the situations in

Southern Steamship Co. and Mr. Vernon Tanker Co.,

there is a marked separation between the protesting

factory workers’ duties and oversight and the

operation of the vessel.

Considering all the circumstances herein, I find the

terminated employees are not “seamen,” and,

therefore, Federal maritime statutes do not preempt

their protections under the Act. Consequently, the

terminated employees' refusal to obey their

supervisors’ directions to return to work did not

constitute mutinous' behavior. Further, it is

immaterial that Respondent may have had a gocd-

faith belief that the employees' conduct was

mutinous. An employer violates Section 8(a)(1) of the

Act by discharging or disciplining employees based

on its good faith but mistaken belief that the

employee engaged in misconduct in the course of

protected activity. NLRB v. Burnup & Sims, 379 US.

21 (1964).

Respondent also argues that the _ protesting

employees’ conduct was unprotected by the Act

without regard to maritime law. Respondent

analogizes the instant conduct to that of employees

disseminating deliberately false statements®°® or

urging participation in an unlawful “econdary

boycott.31 But the analogies are inapposite; the

employees here engaged in no misconduct, unless

their concerted protest, in itself, can be so

characterized. Respondent argues that it can. In

Respondent's view, the protesting employees engaged

in unreasonable and unprotected behavior by

conducting a work stoppage aboard a vessel in the

open sea when a rational alternative had been

offered. Respondent posits that when Hermens and

Captain Smith directed employees to return to work,

assuring them their concerns would be addressed at

the first opportunity, the continued work stoppage

lost any protection it might have had. The cases cited

by Respondent to support this proposition are

inapplicable. G. W. Gladders Towing Co, 287 NLRB

186 (1987), and SCNO Barge Lines, Inc., 287 NLRB

169 (1987), both involve questions of reasonable

alternatives to nonemployee labor organizers’ access

to crewmen, which is not at issue herein, while Felix

Industries, 331 NLRB 144 (2000), considers whether

an employee lost the Act's protection by obscene

response to a supervisor, also not an issue herein. As

to Respondent's contention that the workers'

behavior, including their refusal to accept

Respondent's offer to discuss their concerns at a

more convenient time was “unreasonable,” the Board

has rejected the claim that “an employee protest

must also employ reasonable means in order to be

protected by the Act. Co-Op City, 341 NLRB 255 fn. 5

(2004), citing Accel, Inc., supra, and Trompler, Inc.,

335 NLRB 478, 480 fn. 26 (2001) ( “the

reasonableness of workers' decisions to engage in

concerted activity is irrelevant to the determination

of whether a labor dispute exists or not’), enfd. 338

B-63

F.3d 747 (7th Cir. 2003).

*28 Respondent also contends that the work

stoppage, which might “be considered protected

activity in a typical land-based workplace” is

unprotected because it occurred in the middle of an

ocean where “it is simply not possible to readily

locate replacement workers” and “interfere[d] with

Respondent's legitimate business ' operations.”

Respondent's assertion that the work stoppage

impacted its business is undeniable, requiring, as it

did, Respondent to make unscheduled land stops to

debark the strikers and later to _ procure

replacements. Those singular circumstances are,

however, irrelevant to the strike's lawfulness. The

whole point of a strike is to exert economic pressure

on an employer by withholding needed labor services

and thereby discommoding the employer. While a

strike's potential for harmful impact on an

employer's business may justify certain employer

actions,®2 the fact that this strike occurred in

circumstances that intensified the economic impact

on Respondent neither renders it unlawful nor

justifies Respondent's termination of strikers. There

is no evidence the protesting employees here had any

object other than peacefully to pressure Respondent

to discuss the shift increases with them. Their work

stoppage was neither destructive nor obstructive,

although it may have engendered frustration and

inconvenience for Respondent, and it constituted a

lawful expression of employee concerns. Rhee Bros.,

Inc., 343 NLRB No. 80 (2004).

Under the Act, strikers retain the status of

employees. While employees can be permanently

B-64

. replaced for engaging in an economic strike, they

may not lawfully be discharged for doing so. NLRB v.

International Van Lines, 409 U.S. 48 (1972); Rhee

Bros., Inc., supra. Accordingly, I find Respondent

violated Section 8(a)(1) of the Act by terminating the

protesting employees for engaging in concerted

protected activity.

3. Termination of Ulysses Nieto

Nieto was engaged in protected concerted activity

when, on February 15, he served as spokesman for

factory workers who sought increased compensation

for taking on increased work loads following the

February 2 terminations. Children's Studio School

Public Charter School, 343 NLRB No. 19 (2004).

Respondent's motivation in terminating Nieto on the

same day is in dispute. In resolving that issue, the

Board's analytical guidelines in Wright Line, supra,

control. If the General Counsel's evidence supports a

reasonable inference that protected concerted

activity was a catalyzing factor in Respondent's

discharge of Nieto, he has made a prima facie

showing of unlawful conduct.33 The burden of proof

then shifts to Respondent to establish persuasively

by a preponderance of the evidence that it would

have made the same decision, even in the absence of

protected activity.°4 Avondale Industries, 329 NLRB

1064 (1999); T&J Trucking Co., 316 NLRB 771

(1995). Hermens, who approved Nieto's discharge,

bore patent animosity toward employees’ protected

activities. He wanted to rid Respondent of “spies”

and troublemakers, and Nieto fit the troublemaker

criteria: he was a resident of Wenatchee, from which

area most of the strikers haled; he was the brother of

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striker Caesar Nieto, and he engaged in the .

protected activity of speaking for workers seeking

raises after the February 2 terminations, all of which

Hermens knew. Finally, Nieto was terminated,

assertedly for sleeping on the job, shortly after

presenting employee demands on February 15. In

these circumstances, I conclude the General Counsel

has made “an initial ‘showing sufficient to support

the inference that protected conduct was a

motivating factor” in Respondent's decision to

terminate Nieto. American Gardens Management

Co., supra. The burden of proof therefore shifts to

Respondent to show that Nieto's termination would

have (not just could have) occurred even in the

absence of his leadership role among employees

seeking post-February 2 recompense. Avondale

Industries, supra at 1066.

*29 In assessing Respondent's evidence of lawful

purpose in terminating Nieto, I recognize the fact

that an employer's desire to retaliate against an

employee or to curtail protest does not, of itself,

establish the wlegality of a termination. If an

employee provides an employer with sufficient cause

for dismissal by engaging in conduct that would, in

any event, have resulted in termination, the fact the

employer welcomes the opportunity does not render

the discharge unlawful. Avondale Industries, supra;

Klate Holt Co., 161 NLRB 1606, 1612 (1966).

Further, it is well established the Board “cannot

substitute its judgment for that of the employer and

decide what constitutes appropriate discipline.”

Detroit Paneling Systems, 330 NLRB 1170, 1171 fn. 6

(2000), and cases cited therein. Nonetheless, the

Board's role is to ascertain whether an employer's

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proffered reasons for disciplinary action are the

actual ones. Ibid. The question here is whether

Respondent terminated Nieto because he slept when

he should have been working or because he was a

high-profile protester.

Direct evidence of unlawful motivation is seldom

available, and unlawful motivation may be

established by circumstantial evidence, the

inferences drawn therefrom, and the record as a

whole. Tubular Corp. of America, 337 NLRB 99

(2001); Abbey Transportation Service, 284 NLRB 689,

701 (1987); Shattuck Denn Mining Corp.; 362 F.2d

466, 470 (9th Cir. 1966). Indications of

discriminatory motive may include’ expressed

hostility toward the protected activity,35 abruptness

of the adverse action,36 timing,3? disparate

treatment,3® and/or departure from past practice.®

Here, there is no overt evidence of union animus

directed specifically toward Nieto, but circumstances

exist from which it is reasonable to infer animus.

Hermens hoped to avoid recurring strikes by ridding

the factory of “spies” and troublemakers, which

strategy Rafferty was well aware of. Since Nieto had

just led an employee push for increased wages, it is

reasonable to infer that Respondent considered him

an activist, or, in Hermens' view, a troublemaker.

Respondent's work rules forbade sleeping while on

duty, but Nieto's filching a few minutes of illicit sleep

was not an uncommon infraction of Respondent's

work rules, and the rules provide for discharge or

“lesser disciplinary action” depending on the “gravity

of the offense.” In fact, Respondent normally warns

employees for a first offense of sleeping on the job.

Nevertheless, when Rafferty saw Nieto sleeping, he

abruptly fired him, contrary to Respondent's normal

practices. Respondent has neither satisfactorily

explained why Rafferty, rather than Hermens, fired

Nieto nor clarified why Nieto's sleeping on the job

was so much graver than other employees’ similar

conduct so as to require termination rather than

warning.*° Both departures from past practice

suggest unlawful considerations motivated the

discharge. Moreover, in spite of Nieto's prior

excellent performance evaluation, Respondent

attempted to portray him as a marginal employee

who was “always on the verge of being in trouble.”

Respondent's attempt to distort or misrepresent

Nieto's employment history further suggests

improper motivation in_ terminating him.

Accordingly, I find Respondent violated Section

8(a)(1) of the Act by terminating Nieto for engaging

in concerted protected activity.

4. Termination of Sebastion Cortez

*30 Respondent terminated Cortez on February 16

because he complained to other employees about

wages and the processors' arduous. schedule.

Respondent argues that Cortez was not engaged in

protected activity because he was “simply

complaining and spreading misinformation to his

fellow workers.” While griping about a purely

personal concern is not ordinarily considered action

undertaken for mutual aid or protection, voicing

concerns that pertain to working conditions affecting

other employees as well as the complaining worker is

protected by Section 7 of the Act. Alaska Ship &

Drydock, Inc., 340 NLRB 874 fn. 1 (2003)

(maintenance of a policy banning wage discussion

B-68

ate

without sufficient business justification violates the

Act). Moreover, the Board considers that “the truth

or falsity of an employee's communications to others

generally is immaterial to the protected nature of the

activity [citations omitted].” Mobil Oil Exploration &

Producing, U.S., Inc., 325 NLRB 176 fn. 9 (1997).

Terminating an employee for complaining about

working conditions violates 8(a)(1). Aroostook County

Regional Ophthalmology Center, 317 NLRB 218

(1995). Accordingly, I find Respondent's termination

of Sebastion Cortez violated Section 8(a)(1) of the

Act.

CONCLUSIONS OF LAW

1. Respondent is engaged in commerce within the

meaning of Section 2(2), (6), and (7) of the Act.

2. The Union is a labor organization within the

meaning of Section 2(5) of the Act.

3. Respondent violated Section 8(a)(1) of the Act on

February 2 by interrogating Luis Verduzco Sr.

4. Respondent violated Section 8(a)(1) of the Act on

February 2 by discharging the following employees

because they engaged in_ protected concerted

activities:

Asuncion Aguirre

(aka Aguirre Asuncion)

Winston Brown

Jose Cabrera

Joel Camacho

B-69

Jorge Camacho

Jose Cervantes

Noel Comelio

Ricardo Cuevas

Jose Luis Delgadillo

Gabriel Garibay

Baltazar Gonzalez

Alfonso Lopez

Juan Lovos

Miguel Martinez

Brad Monaco

Caesar Nieto

Maurisio Ramirez

Juan Reyes

Ruben Ruiz

Luis Verduzco Sr.

Luis Verduzco Jr.

Sergio Velasquez

Arturo Leon?!

5. Respondent violated Section 8(a)(1) of the Act on

February 15 by discharging Ulysses Nieto because he

engaged in protected concerted activities.

6. Respondent violated Section 8(a)(1) of the Act on

February 16 by discharging Sebastion Cortez

because he engaged in protected concerted activities.

7. The unfair labor practices set forth above affect

commerce within the meaning of Section 8(a)(1) and

Section 2(6) and (7) of the Act.

REMEDY

Having found that Respondent has engaged in

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certain unfair labor practices, I find that it must be

ordered to cease and desist and to take certain

affirmative action designed to effectuate the policies

of the Act.

*31 Respondent having unlawfully discharged the

above-named employees, it must offer them

reinstatement insofar as it has not already done so

and make them whole for any loss of earnings and

other benefits, computed o> a quarterly basis from

date of discharge to date of proper offer of

reinstatement, less any net interim earnings, as

prescribed in F. W. Woolworth Co., 90 NLRB 289

(1950), plus interest as computed in New Horizons

for the Retarded, 283 NLRB 1173 (1987).42

On these findings of fact and conclusioz.s of law and

on the entire record, I issue the following

recommended?

ORDER

The Respondent, Phoenix Processor Limited

Partnership, Seattle, Washington, its officers,

agents, successors, and assigns, shall

1. Cease and desist from

(a) Interrogating Luis Verduzco Sr.

(b) Discharging employees because they engage in

protected concerted activities.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

B-71

(a) Within 14 clays from the date of this Order,

insofar as it has not already done so, offer the

following employees (the discharged employees) 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:*4

Asuncion Aguirre

(aka Aguirre Asuncion)

Winston Brown

Jose Cabrera

Joel Camacho

Jorge Camacho

Jose Cervantes

Noel Cornelio

Ricardo Cuevas

Jose Luis Delgadillo

Gabriel Garibay

Baltazar Gonzalez

Alfonso Lopez

Sebastion Cortez

Juan Lovos

Miguel Martinez

Brad Monaco

Caesar Nieto

Maurisio Ramirez

Juan Reyes

Ruben Ruiz

Luis Verduzco Sr.

Luis Verduzco Jr.

Sergio Velasquez

Arturo Leon

Ulysses Nieto

(b) Make the discharged employees 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 remedy section of the

decision.

(c) Remove from its files any reference to the

unlawful discharges of each of the discharged

employees and thereafter notify them in writing that

this has been done and that the discharges will not

be used against them in any way.

(d) Preserve and, within 14 days of a request, or such

additional time as the Regional Director may allow

for good cause shown, provide at a reasonable place

designated by the Board or its agents, all payroll

records, social security payment records, timecards,

personne] records and reports, and all other records,

including an electronic copy of such records if stored

in electronic form, necessary to analyze the amount

of backpay due under the terms of this Order.

(e) Within 14 days after service by the-Region, post

at its office in Seattle, Washington, copies of the

attached notice*® marked “Appendix.”46 Copies of the

notice, on forms provided by the Regional Director

for Region i9 after being signed by Respondent's

authorized representative, shall be posted by

Respondent immediately upon receipt = and

maintained for 60 consecutive days in conspicuous

places including all places where notices to

employees are customarily posted. Reasonable steps

shall be taken by 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, Respondent has gone

out of business or closed the facility involved in these

proceedings, Respondent shall duplicate and mail, at

its own expense, a copy of the notice to all current

employees and former employees employed by

Respondent at any time since February 2, 2003.

*32 (f) Within 21 days after service by the Region,

file with the Regional Director a sworn certification

of a responsible official on a form provided by the

Region attesting to the steps that Respondent has

taken to comply.

Dated, at San Francisco, CA: February 4, 2005

1 All dates are 2003, unless otherwise specified.

2 At the hearing, counsel for the General Counsel

amended the complaint to allege the following

individuals employed by Respondent in the following

positions as supervisors of Respondent within the

meaning of Sec. 2(11) of the Act, and/or agents acting

on behalf of Respondent under Sec. 2(13) of the Act:

Juan Aldana foreman

Jose Rojasassistant foreman

Jeff Singerassistant foreman

Esteban Berrera assistant foreman

Respondent admitted Juax Aldana, Jose Rojas, and

Esteban Berrera were supervisors within the

meaning of the Act but denied agency status and

denied Jeff Singer was either a supervisor or an

agent of Respondent.

The parties also stipulated that at all material times,

Premier Pacific Seafoods, Inc. (Premier) and Corine

Seitz, human resource director for Premier have

served as Respondent's agents within the meaning of

Sec. 2(13) of the Act. .

3 Unless otherwise explained, findings of fact herein

are based on party admissions, stipulations, and

uncontroverted testimony. The General Counsel's

unopposed posthearing motion to correct the

‘transcript is granted. The motion and corrections are

received as ALJ Exh. 1.

4 The industry also has a Haike season that takes

place in the springtime. The Phoenix, however, has

not participated in that season for a few years.

5 Respondent maintains the increased shift is

consistent with the employee handbook, which

states, “A standard work day consists of 12 to 16

hours within a 24-hour period,” contending that the

one-half hour lunchbreak is not part of the shift time.

It is clear, however, the overall shift time increased

B-75

by one-half hour.

6 Respondent denied Jeff Singer, assistant foreman,

was a supervisor and/or agent within the meaning of

the Act. The General Counsel bears the burden of

proving supervisory/agency status. NLRB uv.

Kentucky River Community Care, 532 U.S. 706

(2001), which he has not met as to Jeff Singer.

7 Rojas, who testified under subpoena by the General

Counsel, voluntarily terminated his employment

following “A” season, 2003.

8 It was only after the Phoenix left Seattle that

Captain Smith learned the processing shifts would

be lengthened by one-half hour.

9 Neither Luis Verduzco Jr. nor Noel Cornelio

testified. Hearsay testimony regarding delivery of

the petition to the purser was not received for the

truth of that matter but only for establishing

employees' beliefs regarding petition delivery.

10 The first delivery offish on February 2 arrived

about 3 p.m. According to Hermens, “cutting four-

hour fish is a little young,” and the processing time

was accordingly delayed.

11 [ have based the timing of this meeting on

Herme*«s' testimony that immediately after meeting

with Luis Verduzco Sr. regarding the letter, he held

a regularly scheduled 7:30 p.m. management

meeting.

12 Rojas retired to his accommodations and did not

B-76

learn of ensuing events until the following morning.

13 Work gear consisted of rubberized boots, bibs, and

jackets and was called “raingear.”

14 During “A” season of 2001, factory employees

engaged in a work stoppage to protest insufficient

work breaks. The dis»yute was resolved after

intervention of the captain; the employees returned

to work with a 2-day pay penalty and an adjusted

break schedule. Employees were admonished by the

captain, in writing, of the proper chain of command

with which to address concerns: “direct supervisor,

assistant foreman, foreman, assistant factory

manager, factory manager and finally Captain. [If

necessary] contact the personnel office in Seattle.”

15 At some point during the evening of February 2,

Ramon Mendez, Fermin Taisacan, and Jose Luis

Corona returned to work without penalty.

16 [t is not clear what happened to Alberto Rodriguez.

His name does not appear on the list of employees

who debarked in Dutch Harbor, Alaska, as detailed

later, but there is also no evidence he returned to

work.

17 Juan Carlos Reyes and Bradley Monaco were

present in the library but did not sign the paper;

their names were later added to the attendance

sheet.

18 According to Jose Cervantes, when Hermens

returned to the TV room, he said, “You guys still

here? You are fired.” In absence of corroboration, [

B-77

discount this testimony.

19 Sergio Velasquez and Arturo Leon, although

terminated, are not named in the complaint as their

names were inadvertently not included in the

charges filed herein. Arturo Leon has since been

reemployed by Respondent. As noted above, the

status of Alberto Rodriguez is unclear.

20 Estrada testified he had been looking for Nieto for

nearly an hour. I reject his testimony as it conflicts

with both Rafferty's estimate of a shorter period and

Nieto's testimony.

21 Following the hearing, Respondent moved to

reopen the record for receipt of statements from two

of Nieto's coworkers, which arguably corroborated

Rafferty's testimony that Nieto had a history of

entering others' rooms during worktime to sleep. The

statements are dated February 20, 5 days after

Nieto's termination; as they provide no evidence of

prior discipline, I declined to reopen the record.

22 As noted earlier at fn. 17, it is possible that Alberto

Rodriguez was also one of the terminated employees.

Accordingly, my conclusions as to Sergio Velasquez

and Arturo Leon apply also to Alberto Rodriguez if,

at the compliance stage, it is determined he was one

of the terminated employees.

23 Although Respondent argues’. that the

“reasonableness of the charging parties' complaints

about their working hours” is at issue, as long as

employee complaints are not made in bad faith, of

which there is no evidence here, their reasonableness

is not relevant to a determination of whether the

employees’ conduct is protected under the Act. Palco,

325 NLRB 305, 307 (1998); St. Barnabas Hospital,

334 NLRB 1000 (2001).

24 The General Counsel did not allege Respondent's

threat to impose discipline on senior protesters or its

‘February 3 threat to leave the strikers stranded if

they did not sign separation papers stating they had

voluntarily quit, as violations of the Act. Therefore, I

make no findings with regard to that conduct.

25 As Respondent's motivation is undisputed, it is

unnecessary herein to apply the Board's analytical

guidelines in Wright Line, 251 NLRB 1083 (1980),

enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455

US. 989 (1982). La-Z-Boy Midwest, 340 NLRB 80

(2003).

26 NLRB v. J. Weinzrarten, 420 U.S. 251 (1975).

27 46 App. U.S.C.A. § 688.

28 The Court in Southern Steamship stated, “It

should be stressed that the view we have taken here

does not prevent the redress of grievances under the

Act.” 316 U.S. at 48.

29 Indeed, Captain Smith was so removed from

factory oversight that, like the processing employees,

he did not learn of their shift length increase until

after the Phoenix left Seattle.

30 Sprint/United Management Co., 339 NLRB 127

(2003).

31 Electronic Data Systems Corp., 331 NLRB 343

(2000).

32 See, e.g., NLRB v. Brown Food Store, 380 U.S. 278

(1965) (inventory stockpiling, work transferal, etc.),

and Harter Equipment, Inc., 280 NLRB 597 (1986),

enf. sub. nom. Operating Engineers Local 825 v.

NLRB, 829 F3d 458 (3d Cir. 1987) (employer

lockout).

33 “The General Counsel must establish four

elements by a preponderance of the evidence. First,

the General Counsel must show the existence of

activity protected by the Act. Second, the General

Counsel must prove that the respondent was aware

that the employee had engaged in such activity.

Third, the General Counsel must show that the

alleged discriminatee suffered an adverse

employment action. Fourth, the General Counsel

must establish a motivational link, or nexus,

between the employee's protected activity and the

adverse employment action. [citation omitted].”

American Gardens Management Co., 338 NLRB 644,

645 (2002). .

34 A “Dreponderance” of evidence means that the

proffered evidence must be sufficient to permit the

conclusion that the proposed finding is more probable

than not. McCormick on Evidence, at 676-677 (1st ed.

1954)

35 Mercedes Benz of Orland Park., 333 NLRB 1017

(2001).

B-80

36 Dynabil Industries, 330 NLRB 360 (1999).

37 McClendon Electrical Services, 340 NLRB 613 fn. 6

(2003); Bethlehem Temple Learning Center, 330

NLRB 1177 (2000).

38 In re NACCO, 331 NLRB 1245 (2000).

39 Sunbelt Enterprises, 285 NLRB 1153 (1987).

40 While Respondent contends Nieto's lack of remorse

and history of similar conduct justify termination, as

noted earlier I have not credited the proffered

supporting evidence.

41 The question of whether Alberto Rodriguez should

be included in this group of discharged employees is

left to the compliance stage.

42 Ulysses Nieto was incarcerated at the time of the

hearing. The question of what remedy he is entitled

to is left to the compliance stage.

43 If no exceptions are filed as provided by Sec.

102.46 of the Board's Rules and Regulations, the

findings, conclusions, and recommended Order shall,

as provided in Sec. 102.48 of the Rules, be adopted by

the Board and all objections to them shall be deemed.

waived for all purposes.

44 The question of whether Alberto Rodriguez is

entitled to any remedy herein is left to the

compliance stage.

45 If, at the compliance stage, it is determined that

B-81

Alberto Rodriguez was one of the group of employees

unlawfully terminated on February 2, 2003, his

name is to be added to the list of employees on the

Appendix.

46 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.”

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR

RELATIONS BOARD

An Agency of the United States Government

*33 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.

B-82

; "SO

ae 4

ae

hed

WE WILL NOT do anything that interferes with

these rights. More particularly,

WE WILL NOT discharge any of you for protesting

working conditions or for engaging in a protected

work stoppage.

WE WILL NOT interrogate you about protesting

working conditions.

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, insofar as we have not already done

so, offer the following employees 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:

Asuncion Aguirre

(aka Aguirre Asuncion)

Winston Brown

Jose Cabrera

Joel Camacho

Jorge Camacho

Jose Cervantes

Noel Cornelio

Ricardo Cuevas

Jose Luis Delgadillo

Gabriel Garibay

Baltazar Gonzalez

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Arturo Leon

Alfonso Lopez

Juan Lovos

Miguel Martinez

Brad Monaco

Caesar Nieto

Ulysses Nieto

Maurisio Ramirez

Juan Reyes

Ruben Ruiz

Luis Verduzco Sr.

Luis Verduzco Jr.

Sergio Velasquez

Sebastion Cortez

WE WILL make the above-named employees whole

for any loss of earnings and other benefits resulting

from their discharges, less any net interim earnings,

plus interest.

WE WILL, within 14 days from the date of the

Board's Order, remove from our files any reference to

the unlawful discharges of the above employees, and

WE WILL, within 3 days thereafter, notify them in

writing that this has been done and that the

discharges will not be used against them in any way.

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