Camaco Lorain Manufacturing Plant, (2011)
NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Camaco Lorain Manufacturing Plant and United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Region 2-B. Case 82013CA201336785April 29, 2011 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND HAYES On September 28, 2009, Administrative Law Judge Keltner W. Locke issued the attached supplemental decision.1 The General Counsel filed exceptions and a supporting brief.2 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the supplemental decision and the record in light of the exceptions and brief and has decided to affirm the judge2019s rulings, findings,3 and conclusions only to the extent consistent with this Supplemental Decision and Order. The judge discredited the testimony of employee Andre Cheers. Having affirmed the judge2019s credibility findings, we adopt the judge2019s findings that the Respondent did not violate Section 8(a)(1) by coercively interrogating Cheers, creating the impression that his union activities were under surveillance, or threatening him that employees2019 union activities were futile. For the reasons stated below, however, we reverse the judge2019s supplemental decision and find that the Respondent violated Section 8(a)(1) by coercively interrogating employees Alejandro Velazquez and Raphy Vargas, creating the 1 On May 2, 2007, Judge Locke issued a bench decision and certification in this case, recommending that the complaint be dismissed. On December 18, 2008, the two sitting members of the Board issued an order remanding the case to Judge Locke for further findings, analysis, and conclusions. 353 NLRB 605 (2008). In their order, the members instructed the judge, among other things, to provide 201ca new legal analysis of each issue.201d They expressed no opinion as to the merits of the contested complaint allegations. Id. at 608. Having considered the matter, as a three-member panel, we reaffirm the earlier decision to remand the case. 2 There are no exceptions to the judge2019s finding that the Respondent violated Sec. 8(a)(3) and (1) by suspending employee Sam Serrano on May 25, 2006, because of his union support and activities. 3 The General Counsel has excepted to some of the judge2019s credibility findings. The Board2019s established policy is not to overrule an administrative law judge2019s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. impression that Velazquez2019s and Vargas2019 union activities were under surveillance, and discharging Serrano because he engaged in protected concerted activity.4 I. INTERROGATIONS In the spring of 2006,5 there was a short-lived effort, led by Serrano, to organize the Respondent. As part of that effort, several employees, including Velazquez and Vargas, attended a union meeting at a local restaurant. The next morning, Supervisor Lewie Jones asked Velazquez, 201cHow was the meeting?201d Velazquez did not respond. Jones asked Vargas, 201cHow was the meeting yesterday?201d Vargas responded that he did not know what meeting Jones was talking about. These encounters took place on the production floor. Neither Velazquez nor Vargas had attended any other meeting the previous day, either at or away from the workplace. Further, there is no evidence that either was an open union adherent. In assessing the lawfulness of an interrogation, the Board applies the totality of circumstances test adopted in Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), affd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). This test involves a case-bycase analysis of various factors, including those set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964): (1) the background, i.e., whether the employer has a history of hostility toward or discrimination against union activity; (2) the nature of the information sought, i.e., whether the interrogator appears to have been seeking information on which to base taking action against individual employees; (3) the identity of the interrogator, i.e., his or her placement in the Respondent2019s hierarchy; (4) the place and method of the interrogation; and (5) the truthfulness of the interrogated employee2019s reply. As to the fifth factor, employee attempts to conceal union support weigh in favor of finding an interrogation unlawful. See, e.g., Sproule Construction Co., 350 NLRB 774, 774 fn. 2 (2007); Grass Valley Grocery Outlet, 338 NLRB 877, 877 fn. 1 (2003), affd. mem. 121 Fed. Appx. 720 (9th Cir. 2005). The Board also considers whether the interrogated employees are open and active union supporters. See, e.g., Gardner Engineering, 313 NLRB 755, 755 (1994), enfd. as modified on other grounds 115 F.3d 636 (9th Cir. 1997). These factors 201care not to be mechanically applied201d; they represent 201csome areas of inquiry201d for 4 The General Counsel alleged that the Respondent discharged Serrano because he engaged in union and/or protected concerted activities, in violation of Sec. 8(a)(3) and (1). As stated above, we conclude that Serrano2019s discharge violated Sec. 8(a)(1). We find it unnecessary to pass on the 8(a)(3) allegation because such a finding would not materially affect the remedy. 5 All dates refer to 2006 unless otherwise indicated. 356 NLRB No. 143 2 consideration in evaluating an interrogation2019s legality. Rossmore House, supra, 269 NLRB at 1178 fn. 20. Applying these factors, the judge found that there was no history of employer hostility toward or discrimination against union activity, and that Jones did not appear to be seeking information on which to base disciplinary action. The judge found that Jones2019 status as a 201cfirst-line supervisor201d and the fact that he questioned Velazquez and Vargas on the production floor also supported dismissal. The judge acknowledged that the employees2019 201creluctance to disclose whether they attended a union organizing meeting201d weighed in favor of finding the interrogations coercive, but he found this factor insufficient standing alone to render Jones2019 questioning unlawful. Thus, the judge concluded that the interrogations were lawful. We disagree. Regarding the interrogator2019s identity, Jones was a statutory supervisor. He possessed authority to evaluate employees and to determine who would get wage increases. Importantly, there was no level of supervision or management between floor supervisors like Jones and the Respondent2019s general manager, Mike Allen. The Board has found questioning undertaken by supervisors similarly situated to Jones to be unlawful. Moreover, the location of the interrogation2014the employees2019 work area on the production floor2014added to its coercive tendency in the circumstances of this case. Absent evidence that Jones had an office or other formal 201clocus of authority201d at the plant, the production floor was his 201clocus of authority.201d Jones used his authority on the production floor to probe employees2019 union activities with questions about their attendance at a union meeting outside the workplace. The Board has found interrogations unlawful under similar circumstances. See, e.g., Central Valley Meat Co., 346 NLRB 1078, 1087 (2006) (finding unlawful an interrogation by a department foreman on the 201ckill floor201d of a slaughterhouse ). Finally, Velazquez2019s and Vargas2019 reactions to Jones2019 questions evince the coercive nature of the questioning. As stated, neither Velazquez nor Vargas was an open union supporter. See Gardner Engineering, supra, 313 NLRB at 755. When questioned, Velazquez remained silent and Vargas responded untruthfully. The judge acknowledged that their attempts to continue to conceal their support of the Union weigh in favor of finding the questioning unlawful. See Sproule Construction Co., supra, 350 NLRB at 774 fn. 2; Grass Valley Grocery Outlet, supra, 338 NLRB at 877 fn. 1. For these reasons, we find that the Respondent violated Section 8(a)(1) of the Act by coercively interrogating Velazquez and Vargas about their union activity. II. IMPRESSION OF SURVEILLANCE We further find that the Respondent, through Jones2019 questioning, violated Section 8(a)(1) by creating the impression that Velazquez2019s and Vargas2019 union activities were under surveillance. In determining whether a statement or question created an unlawful impression of surveillance, the Board considers 201cwhether, under all the relevant circumstances, reasonable employees would assume from the statement in question that their union or other protected activities had been placed under surveillance.201d Frontier Telephone of Rochester, Inc., 344 NLRB 1270, 1276 (2005), enfd. mem. 181 Fed. Appx. 85 (2d Cir. 2006) (citing Flexsteel Industries, 311 NLRB 257 (1993)); Schrementi Bros., 179 NLRB 853 (1969). The judge found that the Respondent2019s employees 201copenly discussed201d the union organizing meetings and that at least one employee 201ckidded201d Jones about them and invited him to attend. Finding that 201ca reasonable employee likely would conclude that [Jones] learned of the Union meeting lawfully,201d the judge dismissed this allegation, relying on Frontier Telephone, supra. In Frontier Telephone, during a union organizing drive at the respondent2019s Rochester, New York call center, an employee shared with a supervisor an online posting from an internet website used by employees to discuss union issues. 344 NLRB at 1275. Several...
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