Hispanics United of Buffalo,

Docket Number:03-CA-027872
 
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368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

Hispanics United of Buffalo, Inc. and Carlos Ortiz.

Case 03–CA–027872

December 14, 2012

DECISION AND ORDER

BY CHAIRMAN PEARCE AND MEMBERS HAYES, GRIFFIN, AND BLOCK

On September 2, 2011, Administrative Law Judge Arthur J. Amchan issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Acting General Counsel filed an answering brief. The Acting General Counsel filed cross-exceptions and a supporting brief, the Respondent filed an answering brief, and the Acting General Counsel filed a reply brief.1

The National Labor Relations Board has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings,2 findings,3 and conclusions4 and to adopt the recommended Order.

1 The Respondent has requested oral argument. The request is denied, as the record, exceptions, cross-exceptions, and briefs adequately present the issues and the positions of the parties.

2 The Respondent excepts to several of the judge’s evidentiary and procedural rulings, including (1) his revocation of its subpoena to Region 3 of the Board, seeking documents regarding “speakers, meetings, presentations, in-service, conferences and/or seminars presented by Board agents to the Respondent’s employees at its main facility”; (2) his revocation of its subpoenas to the five discharged employees, seeking information such as communications among themselves, applications, if any, to the State for unemployment benefits and/or moneys received from the State, and any complaints or inquiries to State or Federal agencies seeking statutory relief; and (3) his denial of its request for the names and contact information of current and former employees that had been redacted from emails the Board agent investigating the underlying charge allegations had supplied the Respondent.

The Board accords judges’ rulings substantial deference and sets them aside only where they constitute an abuse of discretion. Santa Barbara News-Press, 357 NLRB 452, 452 fn. 3 (2011). A “high burden” is imposed to make this showing. Aladdin Gaming, LLC, 345 NLRB 585, 588 (2005), petition for review denied sub. nom. Local Joint Executive Board of Las Vegas v. NLRB, 515 F.3d 942 (9th Cir. 2008). Having carefully reviewed the record, we find that the Respondent has failed to meet this burden.

First, the judge’s revocation of the subpoena to Region 3 accords with longstanding precedent prohibiting Board agents from producing materials relating to the investigation of unfair labor practice charges.

G. W. Galloway Co., 281 NLRB 262 fn. 1 (1986), vacated on other grounds 856 F.2d 275 (D.C. Cir. 1988); see also Earthgrains Co., 351 NLRB 733, 739 (2007). Second, as to the information subpoenaed from the discriminatees, the Respondent failed to show that it was relevant to any issue in dispute. Accordingly, the subpoena was properly revoked as an unwarranted “fishing expedition.” Santa Barbara News, supra, slip op. fn. 3, citing Parts Depot, Inc., 348 NLRB 152 fn. 6 (2006). Finally, with respect to its request for the redacted names and contact information referenced in emails, we agree with the judge that there is no merit to the Respondent’s argument that it was entitled to the information because these individuals were “potential witnesses” who might have relevant information about the case. The redacted information includes nondiscoverable information gathered by the

At issue in this case is whether the Respondent violated Section 8(a)(1) of the Act by discharging five employees for Facebook comments they wrote in response to a coworker’s criticisms of their job performance. Although the employees’ mode of communicating their workplace concerns might be novel, we agree with the judge that the appropriate analytical framework for resolving their discharge allegations has long been settled under Meyers Industries5 and its progeny. Applying Meyers, we agree with the judge that the Respondent violated 8(a)(1) by discharging the five employees.

The relevant facts are as follows. Marianna ColeRivera and Lydia Cruz-Moore were coworkers employed by the Respondent to assist victims of domestic violence. The two employees frequently communicated with each other by phone and text message during the workday and after hours. According to Cole-Rivera’s credited testimony, Cruz-Moore often criticized other employees during these communications, particularly housing department employees who, Cruz-Moore asserted, did not provide timely and adequate assistance to clients. Other employees similarly testified that Cruz-Moore spoke critically to them about their work habits and those of other employees.

This “criticism” issue escalated on Saturday, October 9, 2010, a nonworkday, when Cole-Rivera received a text message from Cruz-Moore stating that the latter intended to discuss her concerns regarding employee performance with Executive Director Lourdes Iglesias. Cole-Rivera sent Cruz-Moore a responsive text questioning whether she really “wanted Lourdes to know . . . how u feel we don’t do our job. . . .” From her home, and using her own personal computer, Cole-Rivera then posted the following message on her Facebook page:

Board agent during his investigation, and the request constituted further “fishing” for potentially relevant evidence.

3 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility findings 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.3d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

4 For the reasons stated by the judge, we adopt his analysis and conclusion that the Board properly asserted jurisdiction over the Respondent.

5 Meyers Industries, 268 NLRB 493 (1983) (Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), supplemented 281 NLRB 882 (1986) (Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).

359 NLRB No. 37

HISPANICS UNITED OF BUFFALO, INC. 369

Lydia Cruz, a coworker feels that we don’t help our clients enough at [Respondent]. I about had it! My fellow coworkers how do u feel?

Four off-duty employees—Damicela Rodriguez, Ludimar Rodriguez, Yaritza Campos, and Carlos Ortiz—responded by posting messages, via their personal computers, on ColeRivera’s Facebook page; the employees’ responses generally objected to the assertion that their work performance was substandard.

Cruz-Moore also responded, demanding that ColeRivera “stop with ur lies about me.” She then complained to Iglesias about the Facebook comments, stating that she had been slandered and defamed. At Iglesias’ request, Cruz-Moore printed all the Facebook comments and had the printout delivered to Iglesias. On October 12, the first workday after the Facebook postings, Iglesias discharged Cole-Rivera and her four coworkers,6 stating that their remarks constituted “bullying and harassment” of a coworker and violated the Respondent’s “zero tolerance” policy prohibiting such conduct.7

In Meyers I, the Board held that the discipline or discharge of an employee violates Section 8(a)(1) if the following four elements are established: (1) the activity engaged in by the employee was “concerted” within the meaning of Section 7 of the Act; (2) the employer knew of the concerted nature of the employee’s activity; (3) the concerted activity was protected by the Act; and (4) the discipline or discharge was motivated by the employee’s protected, concerted activity. 268 NLRB at 497. See also Correctional Medical Services, 356 NLRB 277, 278 (2010). Only the first and third elements are in dispute here: whether the employees’ Facebook comments constituted concerted activity and, if so, whether that activity was protected by the Act.8

6 The judge noted that Jessica Rivera, Iglesias’ secretary, was not discharged even though she also posted a responsive Facebook comment. The Respondent excepts, stating that it no longer employed Rivera at the time of the discharges. The record, however, shows otherwise.

7 Although Cruz-Moore informed Iglesias on October 10 that she had suffered a heart attack as a result of the Facebook comments, the judge found that there was no record evidence of a heart attack, nor was there any evidence establishing a causal relationship between the comments and Cruz-Moore’s health. In addition, although Iglesias informed the five employees when discharging them that they were responsible for Cruz-Moore’s heart attack, we agree with the judge that Iglesias had no reasonable basis for making that statement.

8 The Respondent does not, and could not, deny that it knew of the concerted nature of the employees’ action, as Iglesias showed the five employees printouts of their October 10 Facebook comments during their discharge interviews. See, e.g., Dresser-Rand Co., 358 NLRB 254, 279 (2012) (the “most obvious evidence” of employer knowledge was respondent’s possession of a voice recording containing evidence of concerted activity). With respect to the fourth element, the judge

The Board first defined concerted activity in Meyers I as that which is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” 268 NLRB at 497. In Meyers II, the Board expanded this definition to include those “circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” 281 NLRB at 887.

Applying these principles, as the judge did, there should be no question that the activity engaged in by the five employees...

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