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NLRB Law Memo 12/04/2006
by Ross Runkel at LawMemo
NLRB Law Memo 12/04/2006
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Staff summarized 1 decision.
Sara Lee d/b/a International Baking Co. and Earthgrain (21‑CA‑36154, et al.; 348 NLRB No. 76) Vernon, CA Nov. 22, 2006.
The Board affirmed the administrative law judge’s findings that the Respondent violated Section 8(a)(1) of the Act by interrogating employees, creating an impression of surveillance, threatening employees with reprisals for union activity, and threatening the outsourcing of work because of Teamsters Local 63.
The Board agreed with the Respondent that the General Counsel’s failure to amend the complaint to include the violations allegedly committed by Logistics Manager Jesse Medina precludes consideration of them. It found, contrary to the judge, that Supervisor Sara Dominguez did not impliedly threaten an employee that supporting the Union would harm the employee’s pay and seniority, that Supervisor Manuel Artega did not unlawfully equate voting for the Union with disloyalty to the Respondent, and that Human Resources Director Irma Elioff did not impliedly promise to continue a flexible discipline policy if employees rejected the Union, or impliedly threaten employees with a strict discipline policy if they selected the Union.
Chairman Battista and Member Schaumber, with Member Liebman concurring in part and dissenting in part, adopted the judge’s finding that the Respondent did not violate Section 8(a)(3) by warning and suspending employee Felipe Serrano for engaging in union activity, or violate Section 8(a)(1), (3), or (4) by suspending or discharging Maria Zarco.
Member Liebman would find that the Respondent violated Section 8(a)(1) by threatening to follow a more rigid disciplinary procedure if employees acquired union representation and unlawfully discharged Zarco. She noted that the majority, like the judge, accepted the Respondent’s contention that Zarco was terminated for falsifying her immigration documentation. While the Immigration Reform and Control Act of 1986 (IRCA) required the Respondent to take corrective action, it did not dictate that Zarco be discharged only a few days after she was placed on unpaid suspension, Member Liebman explained. Because the Respondent failed to show that Zarco would have been treated in the same manner if she had not been a union supporter, Member Liebman would find that her discharge violated Section 8(a)(3).
In the absence of exceptions, the Board approved the judge’s dismissal of allegations that the Respondent violated Section 8(a)(1) by: threatening employees Martin Sanchez and Ruben Luna; threatening the likelihood of future union-called strikes and concomitant job loss if employees selected the Union; threatening the outsourcing of product delivery if employees selected the Union; and interrogating employee Sanchez. It also approved the judge’s dismissal of the allegation that the Respondent violated Section 8(a)(3) by discharging employee Guadalupe Artega.
(Chairman Battista and Members Liebman and Schaumber participated.)
Charges filed by Teamsters Local 63, Bakery Workers Local 37, and Martin Sanchez, an Individual; complaint alleged violation of Section 8(a)(1), (3), and (5). Hearing at Los Angeles, April 4‑7 and May 23, 2005. Adm. Law Judge Lana H. Parke issued her decision July 29, 2005.
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