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NLRB Law Memo 11/24/2006
by Ross Runkel at LawMemo
NLRB Law Memo 11/24/2006
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Staff summarized 1 decision.
Caribe Ford (24-CA-8291, et al.; 348 NLRB No. 74) San Juan, PR Nov. 13, 2006.
Chairman Battista and Member Kirsanow reversed the administrative law judge's finding and held that the Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging employee Generoso Pérez in Jan. 1999 for engaging in protected union activity. They found that the General Counsel failed to establish a prima facie case of unlawful discharge under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Specifically, the General Counsel failed to prove that the Respondent had knowledge of union activity at the time of Pérez's discharge. In addition, Chairman Battista concluded that the evidence did not establish antiunion animus as of that time.
Dissenting Member Liebman, contrary to the majority, would infer that the Respondent knew that Pérez was a leading union supporter when it discharged him promptly after he engaged in open union activity. Like the judge, she would also infer that the Respondent was motivated by antiunion animus based on, among other factors, the adjudicated unfair labor practices committed by the Respondent after Pérez's discharge. Having found that the General Counsel carried his initial burden of proof, Member Liebman would find that, given the shifting and inconsistent grounds it offered, the Respondent failed to prove that it would have discharged Pérez even absent his union activity.
Turning to other alleged violations, the Board agreed with the judge that the Respondent violated Section 8(a)(3) and (1) by issuing an 8-day suspension and disciplinary write-ups to Jose De Diego on April 27 and Aug. 10 and 13, 1999, respectively, and thereafter discharging DeDiego on Sept. 3, because of his activities for Union Nacional de Trabajadores de Puerto Rico. The judge found, with Board approval, that the Respondent violated Section 8(a)(1) by threatening to close its facility if a union were brought in; prohibiting employees from distributing union literature during their nonworking time and threatening them with discharge if they do so; creating an impression of surveillance of its employees' union activities; and soliciting, promising to remedy, and remedying employee grievances in an effort to dissuade them from supporting the Union.
(Chairman Battista and Members Liebman and Kirsanow participated.)
Charges filed by Union Nacional de Trabajadores de Puerto Rico and Generoso Pérez, an Individual; complaint alleged violation of Section 8(a)(1) and (3). Hearing at Hato Rey, June 21-23 and June 29-30, 2000. Adm. Law Judge George Alemán issued his decision Dec. 29, 2000.
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