Publix Super Markets, (2006)

• Docket Number: 12-CA-213931-3

Publix Super Markets, Inc. and United Food & Commercial Workers International Union[1] and United Food & Commercial Workers Local 1625 and Tarvis Hooks and Joaquin Garcia and Edgar Linarte. Cases 12–CA–21391–3, 12–CA–21391–4, 12–CA–21495–7, 12–CA–21553–3, 12–CA–21958, 12–CA–22174, 12–CA–22277–2, 12–CA–22277–3, 12–CA–20429, 12–CA–22059, 12–CA–21172–1, 12–CA–21172–2, and 12–CA–21228

August 31, 2006

DECISION AND ORDER

By Chairman Battista and Members Liebman and schaumber

On August 28, 2003, Administrative Law Judge Lawrence W. Cullen issued the attached decision. The Respondent filed exceptions, a supporting brief, and a reply brief, and the General Counsel filed an answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[2] and conclusions only to the extent consistent with this Decision and Order,[3] and to adopt the Order as modified[4] and set forth in full below.

Introduction

The unfair labor practices alleged in this case arose out of the Union’s long-term, off-and-on campaign to represent the Respondent’s warehouse employees. The events at issue occurred during the period from June 1999 through May 2002.

For the reasons discussed below, we unanimously agree: (1) to adopt the judge’s findings of various 8(a)(1) violations that were not excepted to; (2) to reverse the judge’s finding of an 8(a)(1) violation that was based on precedent that has since been overruled; (3) to adopt the judge’s finding that the Respondent violated Section 8(a)(1) by applying its bulletin board policy in a disparate manner; (4) to adopt the judge’s finding that the Respondent violated Section 8(a)(1) by threatening to discipline and/or discharge employees Joaquin Garcia and Tarvis Hooks for engaging in concerted activity; and (5) to adopt the judge’s finding that the Respondent violated Section 8(a)(3) by disciplining, and ultimately discharging, employee Luis Pacheco.

Chairman Battista and Member Liebman also agree with the judge’s finding that the Respondent violated Section 8(a)(1) by threatening to discharge Pacheco for engaging in union activities. (Member Schaumber separately dissents on this issue.) Chairman Battista and Member Schaumber, however, reverse the judge’s finding that the Respondent violated Section 8(a)(1) by asking employees to report other employees’ union activities. (Member Liebman separately dissents on this issue.)

1. The 8(a)(1) Allegations

   The Respondent excepts to a number of unfair labor practices found by the judge, but it does not present any argument or grounds for disputing the judge’s findings. Specifically, the judge found that the Respondent violated Section 8(a)(1) by the following conduct:

   (1) Supervisor Alvin Pratt’s threats, in late July or early August 1999, that the plant would close and/or that the work would be removed if the employees selected the Union as their bargaining representative;

   (2) Department Head Desmond Tice’s threats, about late July 1999 and again about September or October 1999, to deny employment opportunities (specifically, the opportunity to transfer to truckdriver positions) if the employees selected the Union as their bargaining representative;

   (3) Supervisor Luis Funes’ threats, in mid-October 2001, of discharge and unspecified reprisals because employees filed a lawsuit regarding terms and conditions of employment;

   (4) Various unnamed security guards’ prohibition, since mid-November 2001, on pro-union employees parking in the Respondent’s lot while handbilling;[5]

   (5) Funes’ threats, about February 7, March 12, and May 29, 2002, of discharge because of employees’ union activities, and his creation of an impression of surveillance;

   (6) Department Manager Josue Cardona’s and Assistant Department Head Keith Hanker-son’s threats, about December 2001, that employees would lose the ability to adjust grievances with their supervisors if the employees selected the Union as their bargaining representative; and,

   (7) Human Resource Investigator Tanya Brown’s denial, on May 27, 2002, of employee Joaquin Garcia’s request for a coworker representative at an investigatory interview.

   With the exception of the last of these allegations, we adopt these findings in the absence of argument.[6] Section 102.46(b)(2) of the Board’s Rules (“Any exception . . . not specifically urged shall be deemed to have been waived.”). See, e.g., Elevator Constructors Local 91 (Otis Elevator Co.), 345 NLRB No. 68, slip op. at 1 fn. 2 (2005).

   Even in the absence of specific argument, however, we reverse the judge’s finding that the Respondent violated the Act by denying Garcia’s request for a coworker representative at an investigatory interview. The judge found the violation by applying Epilepsy Foundation,[7] which extended Weingarten[8] to unrepresented employees, entitling them, on request, to have a coworker representative present at investigatory interviews that they reasonably believe could lead to discipline. However, Epilepsy Foundation was overturned in IBM Corp., 341 NLRB 1288 (2004). Because, under our current law, Garcia was not entitled to a coworker representative during his investigatory interview, we cannot find that his rights were violated when Brown denied his request for such a representative. Thus, in light of IBM Corp., we hold that the Respondent’s refusal to grant Garcia’s request for a representative did not violate the Act.

   The judge correctly found that, during the summer of 1999, the Respondent violated Section 8(a)(1) by applying its bulletin-board posting policy in a disparate manner. Relying on Hale Nani Rehabilitation & Nursing, 326 NLRB 335, 336 (1998), in which the Board permitted an employer to engage in literature distribution on its property while prohibiting employee distribution, the Respondent contended that it permitted only production information and other work-related postings by its managers.[9] Nevertheless, the judge credited testimony that employees repeatedly posted offers to sell personal items like homes and cars, and that such postings were not removed. In light of this evidence, the judge rejected the Respondent’s argument that its policy was similar to that of Hale Nani, supra. In these circumstances, we agree with the judge that the Respondent acted unlawfully by disparately removing prounion postings from its bulletin boards.[10] See Holly Farms Corp., 311 NLRB 273, 274 (1993), enfd. 48 F.3d 1360 (4th Cir. 1995); Bon Marche, 308 NLRB 184, 185 (1992).

   The judge also found that the Respondent, through Mosko, violated Section 8(a)(1) by threatening to discipline and/or discharge employees Joaquin Garcia and Tarvis Hooks for engaging in protected concerted activity. As set out in greater detail in the judge’s decision, Mosko informed Garcia and Hooks that they would be disciplined (and could be discharged) for dishonesty, because he believed that they had lied to their supervisor, Jose Diaz, about their reasons for wanting to leave their workstations and meet with Mosko. However, the record shows—and the Respondent concedes—that they never misrepresented that their actual purpose was to accompany and serve as witnesses to their coworker Jefferson Jules’ conversation with Mosko about his work hours. We affirm the judge’s conclusion that their actions in support of Jules were protected, regardless of whether the Respondent had a duty to allow them to attend that meeting. As a result, Mosko’s further investigation of Garcia’s and Hooks’ suspected misrepresentation was based on no more than an incorrect assumption that their purpose was rather to discuss an unrelated overtime policy that Diaz had just announced. Mosko acknowledged at the hearing that the perceived dishonesty was simply a misunderstanding. Although no discipline resulted from these events, Mosko never informed the employees that he had decided not to discipline them or that the threat of discipline was being retracted.

   In evaluating the Respondent’s contention that Garcia’s and Hooks’ apparent dishonesty provided the Respondent with lawful reason to inform them that they would be disciplined, we apply NLRB v. Burnup & Sims, 379 U.S. 21 (1964). There, the Supreme Court held that:

   § 8(a)(1) is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct.

   Id. at 23. The Court found that this rule appropriately guarded the immunity of protected activity; otherwise, “the example of employees who are discharged on false charges would or might have a deterrent effect on other employees.” Id.

   Here, the Burnup & Sims test has been met: Garcia and Hooks were engaged in the protected activity of attempting to assist Jules in dealing with management regarding his work hours; Mosko knew of this activity; the basis of the threatened discipline was Garcia’s and Hooks’ alleged dishonesty in the course of the protected activity; and they were not, as the Respondent acknowledged, guilty of the alleged dishonesty. Under these circumstances, we find that Mosko’s threats of discipline and discharge against Garcia and Hooks would reasonably tend to deter employees from engaging in protected activity, and they therefore violated Section 8(a)(1).

   The judge found that the Respondent violated Section 8(a)(1) by Mosko’s threats to discharge prounion employee Luis Pacheco for engaging in union activities (specifically, for conduct relating to home visits to solicit coworkers’ support for the Union), and by Mosko’s harassment of employees by asking them to report other employees’ union activities. We agree with the judge that Mosko threatened Pacheco...