Alameda Technical College

National Labor Relations Board - Board Decisions

Jun 11, 1991

303 N.L.R.B. 343 (N.L.R.B. 1991)

343
303 NLRB No. 56
ALAMEDA TECHNICAL COLLEGE
1 To the extent portions of the Respondent’s exceptions and brief rely on
nonrecord evidence, we grant the General Counsel’s motion to strike.
2 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 resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
1 All dates are in 1988 unless otherwise indicated.
Alameda Technical College and Jimmie J. Smith
and Frances D. Smith. Cases 32–CA–9946 and
32–CA–10174
June 11, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On December 19, 1990, Administrative Law Judge
Earldean V.S. Robbins issued the attached decision.
The Respondent filed exceptions, a supporting brief,
and a request that the Board take judicial notice of cer-
tain documents. The General Counsel filed a motion to
strike the Respondent’s exceptions and to disregard
nonrecord evidence and a supporting brief. The Re-
spondent filed an opposition to this motion.
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, motion to strike,1 op-
position, and supporting briefs and has decided to af-
firm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Alameda Technical Col-
lege, Hayward, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Daniel F. Altemus Jr., Esq., for the General Counsel.
Elaine W. Wallace, Esq. and Jose Guerrero, Esq., of Oak-
land, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge. This
matter was heard before me on various dates in June and Au-
gust 1989. The charge in Case 32–CA–9946 was filed by
Jimmie J. Smith (Smith), and served on Alameda Technical
College (Respondent or ATC), on October 20, 1988. On No-
vember 29, 1988, a complaint issued in Case 32–CA–9946
alleging that Respondent had violated Section 8(a)(1) of the
National Labor Relations Act (the Act). The charge in Case
32–CA–10174 was filed by Frances D. Smith (F. Smith), and
served on Respondent on February 22, 1989. On March 30,
1989, a complaint issued in Case 32–CA–10174 alleging that
Respondent had violated Section 8(a)(1) of the Act. On
March 31, 1989, the complaints in Cases 32–CA–9946 and
32–CA–10174 were consolidated. The principal issue is
whether Claudine Nuriddin and Smith were discharged be-
cause they, along with certain other employees, advised Re-
spondent that they had formed a ‘‘labor group’’ and made
complaints concerning their working conditions, and whether
F. Smith was refused reinstatement because she engaged in
the protected concerted activities and/or because she is mar-
ried to Smith.
Based on the entire record, including my observation of
the demeanor of the witnesses and after due consideration of
the posthearing briefs filed by the parties, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
At all times material Respondent, a California corporation
with an office and place of business in Hayward, California,
has been engaged in the operation of a private postsecondary
vocational-technical educational institution. During the 12-
month period preceding the issuance of the complaints, Re-
spondent, in the course and conduct of its business oper-
ations, derived gross revenues in excess of $500,000 and pur-
chased and received goods or services valued in excess of
$5000 which originated outside the State of California.
Based on the above, I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. UNFAIR LABOR PRACTICES
A. Introduction
Respondent ATC is engaged in providing training for var-
ious vocations. Dr. Arnold Chavez is president and chief ex-
ecutive officer of ATC. His assistant, David Huerta, is re-
sponsible for academic programs and student services. Pro-
spective students are obtained through an aggressive mar-
keting program headed by the marketing manager. During
the time relevant, until mid-October 1988,1 Raul Fuentes oc-
cupied this position. Victor Rice was his assistant and contin-
ued in that position until the end of November.
The marketing program is the only phase of Respondent’s
operation involved. This program consists of three steps: an
initial contact with a prospective student made by a public
relations representative (PR rep), and followup telephone
calls made by the telemarketing staff in an effort to schedule
registration appointments with admission clerks who attempt
to complete the registration process and, if necessary, to ar-
range for financial aid. The only employees involved are the
PR reps.
The PR reps station themselves at locations, such as wel-
fare and unemployment offices, which are frequented by per-
sons apt to be interested in the type of training offered by
ATC. Prospects are approached by the PR rep and given a
brief sales pitch. If a prospect seems to be interested, the PR
rep records the name, address, and telephone number of the
344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The June 13 memo notifying the accounting department of Smith’s new
position as team captain states inter alia, ‘‘as team captain his responsibility
is to see that his group is on time and at their posts and produce the required
leads per day.’’ However, it does not appear that team captains actually as-
sumed these responsibilities. Further, although team captains sometimes train
new employees, it appears that other PR reps also train new employees.
3 Chavez initially testified that 80 percent of the enrollments were from the
Hayward area. Later, he testified that 40 percent of the enrollments were from
Hayward, 25 to 28 percent from the Fremont area, and 20 to 22 percent from
the Oakland area; and that only 60 percent of the ATC enrollment was gen-
erated from PR rep leads.
prospect on a lead sheet. At the end of the day, the lead
sheet is given to the marketing department where the leads
are tabulated for daily and weekly totals and transmitted to
the telemarketing staff for followup purposes. PR reps are as-
signed to one of three areas: Hayward, Fremont (also re-
ferred to as Tri-Cities), or Oakland. One of the PR reps as-
signed to an area is designated as team captain. However, it
appears that the team captain has no additional responsibil-
ities other than accepting daily lead sheets which were turned
in to them by some of the PR reps.2 According to Victor
Rice, Fuentes’ assistant, he was told that a team captain had
no additional responsibilities, that the designation was simply
Fuentes’ way of giving additional pay to better workers.
PR reps are compensated through wages and commission.
Wages are paid based on a 6-hour workday with team cap-
tains receiving an additional 2 hours’ pay. However, it is un-
disputed that no daily time records are kept. Rather a min-
imum number of leads is considered an indication that one
is entitled to 6 hours’ pay. There is some dispute as to the
minimum number of leads required. Chavez testified as to,
and the job description signed by Smith in May 1988 sets
forth, a 20-lead minimum. Rudder testified that he decreased
the requirement from 20 to 12 leads. However, a job descrip-
tion signed in November sets forth 15 leads as a minimum.
PR reps Marty Duarte and Lisa Grossetete testified that a 20-
lead minimum was required except on Thursdays and Fridays
when 15 leads were required. Duarte testified that he usually
met these minimums. Grossetete testified that most of the PR
reps met these minimums. However, the evidence shows that
for the 57 workdays where daily totals are listed, Duarte and
Grossetete each produced 20 leads on only 1 day. Further,
a memo issued by Fuentes on June 13 states 10 leads were
required in order to receive a day’s pay. Accordingly, I do
not credit Rudder, Chavez, Duarte, and Grossetete in this re-
gard, and I find, despite the statement in the job description,
that during the time material Respondent required a min-
imum of only 10 leads a day.
In addition to wages at the rate of $36 a day, PR reps re-
ceive a commission of $10 for each enrollment resulting
from their leads and an additional $25 if the enrollee remains
in school for a week and a day. They are also expected to
attend weekly staff/sales meetings during which individual
and aggregate weekly work performance are reviewed and
various techniques for performance improvement are dis-
cussed.
B. The Alleged Discrimination
1. Smith and Claudine Nuriddin
Smith commenced employment at ATC on May 16, as one
of three PR reps in the Fremont area. On June 13, he was
assigned as team captain in that area. Claudine Nuriddin
commenced employment on July 22 as a PR rep in the Fre-
mont area. She was trained by Smith and they worked as a
team until Smith was transferred to Hayward on about Au-
gust 25.
At some point prior to August, Smith began complaining
to Fuentes that Hayward leads resulted in a substantially
higher percentage of enrollments than did Oakland and Fre-
mont leads. Smith suggested that PR reps should be rotated
within the three areas in order to equalize the potential for
commissions.3 A rotational system was not instituted. How-
ever, Smith was transferred to Hayward in August. Fol-
lowing his transfer, he continued to be paid as a team captain
but performed no duties different from other PR reps. Alex
Holguin was also paid as a team captain in the Hayward
area. Lisa Grossetete and Marty Duarte also worked in that
area at the time of Smith’s transfer. Nuriddin was transferred
to Hayward in mid-September after Grossetete was termi-
nated. Thereafter she and Smith usually worked together as
a team.
In August, Respondent hired Keith Rudder, a freelance
consultant. It is undisputed that his responsibilities included
evaluating the admissions and marketing programs, trouble-
shooting in problem areas, and making recommendations for
changes to improve the performance of those departments.
Specifically, ATC wanted to increase the percentage of en-
rollments generated from PR rep leads and other sources.
Both Chavez and Rudder testified that Rudder’s only role
was to evaluate and make recommendations, that he had no
authority to implement changes, could not hire or fire, and
had no authority over employees. However, it is quite clear
from the record that Rudder’s role was not that restricted or,
at the very least, he was not presented to the employees as
occupying such a limited role. Thus, on October 11, with
Chavez’ approval, Rudder issued a memo to the admissions
and marketing staff notifying them of certain reorganization
changes. The memo states, inter alia:
[T]he following changes have occurred:
Raul Fuentes will serve in the capacity as Director
of Admissions and will be responsible for the produc-
tion of enrollments and class starts exclusively until
further notice. In addition, he will assist Anita in inter-
viewing prospective students targeting recruitment. Mr.
Fuentes will report directly to Keith Rudder. This move
will assist us in maximum coverage of leads to increase
starts.
Telemarketing and Public Relations Representatives
will interface with Victor Rice who will report to Keith
Rudder until further notice.
We will be streamlining office operations in an effort
to improve reporting methods. This will assist you in
maximizing work performance for all.
As we re-organize for the betterment of the training
facility I will focus on three major areas of account-
ability:
1. PUBLIC RELATION REPS—Quality of leads gen-
erated, level of work performed.
2. TELEMARKETING—Quantity and quality of ap-
pointments set, interviews conducted.
3. ADMISSIONS— Applications ‘‘written’’ to percent-
age of those enrolled to actual ‘‘starts.’’ Let me men-
345ALAMEDA TECHNICAL COLLEGE
tion admissions will also be held accountable for
‘‘pendings.’’
4. INTANGIBLES—Continuous training of all depart-
ments.
To insure success, periodically, I will perform audits
(quality control) within certain levels of the admissions
staff. In addition, I will intermittently conduct perform-
ance reviews on individual staff members to maintain
level of production. The following areas will be signifi-
cant to your success:
The ability to listen.
The ability to follow directions.
Attitude—(Are you a team player?).
Level of work performed—(Results oriented, goal
setters and achievers).
I am committed to our success . . . YOU MAKE
THE DIFFERENCE . . . LET’S SEE WHAT YOU CAN DO!
Rudder also conducted the weekly Friday afternoon meet-
ings with the PR reps. The record is not clear as to every-
thing that occurred during these meetings. However, he did
introduce a dress code, and reviewed performance statistics
and techniques for approaching prospects. He also made var-
ious remarks, some abusive, expressing his opinion that PR
reps were easily replaceable.
The changes and remarks made by Rudder apparently in-
tensified the dissatisfactions felt by certain employees which
they began discussing among themselves. Smith drafted a let-
ter to Chavez dated October 11 which was signed by em-
ployees Smith, F. Smith, Holguin, Duarte, Nuriddin, Robert
Fisher, and Kevin Washington. The letter states:
You are hereby notified that Alameda Technicals
Colleges’s perminate Public Relations Representatives
employee’s have joined together and organized a labor
group. Our groups purpose is to improve our working
conditions, pay, and benefits. The Federal Board of Na-
tional Labor Relations and the California labor code
section 923 provides a legal basis and protection for our
labor group. [Sic]
We are also notifying you that a ‘‘labor dispute’’ ex-
ists between our labor group and Alameda Technical
College.
Included in our issues of dispute are various unfair
acts that Consultant Keith Rudder and manager Raul
Fuentes have taken against your schools female em-
ployees. During a recent meeting held for Public Rela-
tion Representatives, Consultant Rudder and manager
Raul Fuentes threat [sic] to fire and replace each of us.
A few weeks earlier manager Raul Fuentes fired Public
Relation Representative Lisa Grosette [sic] and replaced
her with a temporary agency employee. Consultant
Keith Rudder and manager Raul Fuentes are in the
process of using a highly subjective and biased em-
ployee performance evaluation system as a basis of
discipling and firing employees. Our concerns also in-
clude several other job related matters. [Sic]
We are presently making arrangements for the issues
of our labor dispute to be resolved in a timely fashion.
Enclosed you will find information relating to
‘‘guide lines’’ that the State of California has set for
the conduct of an employee involved in a labor dispute.
We will provide you with three working days from the
day that you receive this notice to comply with the
‘‘guide lines’’ associated with the publishing of em-
ployee wanted advertisements and the employment of
temporary employees. Immediate complaints will be
filed against you for any violations of those guide lines.
It is undisputed that the letter was given to Chavez on Oc-
tober 14 during, or at the end of, a scheduled PR rep meet-
ing. Smith gives the only detailed account, which is
undenied, of what was said when the letter was given to
Chavez. However, according to him and Nuriddin, Nuriddin
gave Chavez the letter. According to Chavez, Smith handed
him the letter. Duarte testified that he thinks Smith handed
Chavez the letter but admits he is not certain. It is undis-
puted that Smith and Nuriddin were together when one of
them delivered copies of the letter to Chavez and Rudder and
that Smith did the talking. Chavez admits that he assumed
Smith was the instigator of the protected activity.
According to Smith, he said Nuriddin had a document to
deliver to Chavez. Nuriddin handed the October 11 letter to
Chavez and handed copies to Rudder and Rice. Chavez, Rud-
der, and Rice read the letter. Rudder then asked ‘‘What are
you guys doing starting a union?’’ Fisher replied, ‘‘No, we
are just starting a little labor group to try to protect our
rights.’’ Rudder said ‘‘Well, I’ll have to get together with
Dr. Chavez on this and we’ll get back to you on Monday
about this.’’ I credit Smith in this regard. On the next day,
according to Victor Rice’s undenied and credited testimony,
Rudder told him Smith was a troublemaker and he wanted
to get rid of him.
On Monday, October 17, Chavez held a meeting in his of-
fice with PR reps. According to Smith, Chavez said Rudder
and Fuentes were no longer at ATC, and Chavez would be
personally taking over the marketing operation. Smith asked
why Rudder and Fuentes had left ATC. Chavez said it was
personal and he did not want to discuss it. After some dis-
cussion of changes to be implemented, Chavez said he want-
ed to speak to Smith privately. Smith said anything work re-
lated was not private and that Chavez was free to discuss it
openly. Chavez said he was demoting Smith from team cap-
tain to PR rep. Chavez also announced a meeting for the fol-
lowing day. According to Nuriddin, he further stated he was
working to try to settle some of the disputes the PR reps had.
After the meeting Smith and Nuriddin proceeded to a work
location outside the Hayward unemployment office. While
they were there, according to Smith’s undenied testimony,
Duarte came by and said Chavez was promoting Duarte and
Holguin to higher positions and one of the things they would
be doing was speaking to employees individually to identify
their individual complaints so they could be resolved. Later
that day, Chavez visited Smith and Nuriddin at their work
station. He asked how things were going and if there were
any complaints. About an hour and a half later Holguin came
by and told them he and Duarte had been offered supervisory
positions and they would be trying to resolve the problems
the employees had.
On that same day Chavez instructed Huerta to give the fol-
lowing letter, dated October 17 and signed by Huerta, to
Smith:
ATC P.R. Rep.
Employee Labor Group
21192 Hesperian Blvd.
346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Smith places her at the Duarte conversation but not at the Holguin con-
versation.
5 This apparently refers to the minimum performance requirements in the PR
rep job description. The one signed by Smith states:
MINIMUM REQUIREMENTS
1. The PR Rep is required to report daily and to submit a lead sheet
with a minimum of twenty (20) leads per day.
2. Attend meetings every Friday at 2:30 p.m.
3. If a lead sheet is not handed in or authorized by a supervisor, on
time and on the same day, NO PAY will be authorized for that day.
6 All dates hereinafter in this section are in 1989.
Hayward, CA 94541
ATT: Smith
Dear Reps:
Your letter and attachment have been received and are
being reviewed. Please be advised, however, that your
attachment describing Basic Organizing Rights and Pro-
tections was put together piecemeal and is incomplete.
We are requesting a full copy of the appropriate regula-
tions from Employment Development Department
(EDD) and will be glad to comply with their limitations
and allowances as soon as we know completely our
rights and protections as an employer.
For future reference, if you wish to cite regulations and
sections of an Act, do not delete portions, but present
the section in whole.
Chavez admits the letter was given to Smith because Smith
did most of the talking when the October 14 letter was pre-
sented to Chavez and because of this, he assumed Smith
‘‘headed the whole thing up.’’ A copy of this letter was
placed in Smith’s personnel file. However, there is nothing
in the record to establish that similar letters were placed in
the files of other employees who signed the October 14 let-
ter.
During a meeting with PR reps on the following day, Oc-
tober 18, Chavez announced that Duarte and Holguin were
being promoted to supervisory positions. At this same meet-
ing Smith asked why he had been demoted. Chavez said
there had been a systems change.
On October 20, Nuriddin telephoned Rice and told him
she and Smith were taking care of some business at the
Labor Commission and did not know exactly what time they
would finish. Rice said, ‘‘fine.’’ On their return to ATC that
afternoon, Holguin and Duarte questioned their being absent
that day. When they explained that they had reported to Rice,
either Holguin or Duarte said they were not to deal with Rice
any longer but rather should deal directly with Holguin and
Duarte. According to Nuriddin, one of them also said that
new contracts were being prepared which would include new
rules and that disciplinary measures would be employed if
they did not adhere to these rules. He further asked what was
their business with the labor relations board. Smith replied
that as management, Holguin and Duarte could no longer ask
certain questions and would have to be careful that any dis-
ciplinary action could not be interpreted as harassment or re-
taliation.
Smith corroborates Nuriddin that Duarte and Holguin
asked why they were absent. To which he replied that they
had gone to several agencies to file complaints, without
specifying any particular agency. Smith further testified there
was some discussion about Holguin’s and Duarte’s intent to
ensure that everyone received their proper commission. How-
ever, his account does not include any reference to new con-
tracts and/or rules or to possible disciplinary measures.
On October 21, according to the undenied testimony of
Smith, Holguin approached Smith at his work location and
told him he wanted him and Nuriddin to accompany him to
another location for training purposes. Smith said he would
not go. Holguin inquired as to why. Smith said it was unfair,
he did not think it would serve any purpose and referred to
an earlier refusal by Holguin to go to his work location.
Holguin expressed some displeasure at Smith’s reference to
what had happened in the past, and left. Shortly thereafter
Duarte came by and asked Smith if Holguin had been there.
When Smith said he had, Duarte asked why Smith has not
accompanied Holguin. Smith gave him basically the same
reply he gave Holguin. Nuriddin testified that although she
was present during the Holguin conversation, she was talking
to another PR rep so the only portion of the conversation she
heard was Smith saying he and Nuriddin were going to re-
main there. According to her, she was not present during the
conversation with Duarte.4
According to Smith and Nuriddin, later that day at a PR
rep staff meeting conducted by Holguin and Duarte, either
Holguin or Duarte said that Holguin was the top producer
and Claudine was the second top producer. They congratu-
lated her on doing a very good job. Near the end of the
meeting Smith turned to Chavez who was sitting behind him
and asked if he would voluntarily recognize the employees
as a labor group. Chavez said he did not have to give Smith
an answer, and left. At the conclusion of the meeting, Cha-
vez gave Smith and Nuriddin individual letters dated October
20, the body of which read:
This letter is official notification that your services to
Alameda Technical College are to be terminated, effec-
tive immediately.
The reason for this termination is that you did not
meet the standards during the probationary period.5
Pending commissions will be paid following normal
procedures. All ATC commission liability will termi-
nate no later than November 2, 1988.
Neither Smith nor Nuriddin has worked at ATC since that
day.
2. Frances Smith
F. Smith was hired by ATC on May 24 as a PR rep and
assigned to work with Holguin in the Hayward area. On her
second day of employment she injured her ankle and did not
report for work again until February 6, 1989. During this in-
terval her doctors on several occasions changed the dates for
her return to work. Smith gave Respondent copies of each
of these release slips which stated variously that she could
return to work on May 31, June 13, July 28, September 15,
November 7, and 4 weeks from December 20.
On February 6, 1989,6 F. Smith and Smith went to ATC
and spoke to John Picket, director of marketing at ATC. Ac-
cording to F. Smith, she gave him a letter from her doctor,
dated January 24, stating that she was being released to re-
turn to work as of February 6, 1989. Picket read the letter
and said ‘‘Oh, you’re back to work. Fine, I’ll call Marty.’’
347ALAMEDA TECHNICAL COLLEGE
He then paged Duarte. When Duarte did not answer the
page, Picket left the room for a few minutes. When he re-
turned, he said there were no openings. F. Smith asked if he
was sure. Smith said since his wife had been injured on the
job, the law required ATC to reinstate her. Picket again said
there were no positions open. Smith said they would take the
matter to a higher authority and they left.
It is undisputed that Respondent hired, through contractor
Job Source, a PR rep on that same day. Duarte testified that
he placed the job order prior to 9 a.m. when F. Smith re-
quested reinstatement, but the job order does not list a time.
The person hired that day, Moreno, did not testify. It is also
undisputed that several other PR reps were hired within the
following month. However, F. Smith never checked again to
see if a position had become available, nor did Pickett refer
her to Job Source. There is no evidence in the record to es-
tablish whether Respondent had a practice of referring to Job
Source applicants for whom it had no available position or
of keeping a list of applicants or employees wishing to return
from leave from which it contacted these persons when a va-
cancy occurred.
C. Conclusions
1. Smith and Claudine Nuriddin
The complaint alleges that Smith and Nuriddin were dis-
charged because they signed the letter advising Respondent
that the eight employees who signed the letter had organized
a ‘‘labor group’’ for the purpose of improving their working
conditions. Respondent contends (1) that there was no pro-
tected concerted activity and (2) that Smith and Nuriddin
would have been discharged regardless of their alleged pro-
tected activity. The basis for Respondent’s argument that
there was no protected concerted activity is somewhat un-
clear. It appears that Respondent is simply arguing that it has
certain management prerogatives to establish working condi-
tions and that the employees who signed the letter did not
intend to form a union. Neither of these arguments are mate-
rial. Protected concerted activity does not have to be union
activity. If two or more employees band together to better
their working conditions, the activity is protected. Here, sev-
eral employees signed a letter protesting their working condi-
tions, which letter was delivered to Respondent. While not
artfully written, nothing in the letter or the circumstances of
its delivery is sufficient to remove the activity from the pro-
tection of the Act. Accordingly, I find that Smith and
Nuriddin were engaged in protected concerted activity.
The principal issue is whether they were discharged for
such activity. On October 14, Smith and Nuriddin presented
the letter to Chavez and copies to Rudder and Rice. On the
next day, Rudder told Rice that Smith and Nuriddin were
troublemakers and he wanted to get rid of them. On October
20, Smith and Nuriddin were discharged allegedly because
they failed to meet ‘‘standards during the probationary pe-
riod.’’ In its posthearing brief Respondent argues that the
discharges would have occurred, regardless of any protected
activity, based on substandard job performance and insubor-
dination. Specifically, Chavez testified that Nuriddin was dis-
charged because of poor work performance and Smith was
discharged because of the low percentage of enrollments re-
sulting from leads turned in by them and his refusal to work
at assigned sites and geographical areas and refusals to come
to work, but seeking pay for such absences. I find these rea-
sons to be pretextual. Respondent presented no documentary
evidence to establish that the ratio of enrollments to leads
submitted by Smith and Nuriddin were any lower than those
submitted by other PR reps working in the same area. They
were never disciplined for substandard performance. Smith
was promoted to team captain and retained that title and pay
even after he was transferred to an area which already had
a team captain and was demoted only after the October 11
letter was delivered. During the weekly meetings, neither
Smith nor Nuriddin were singled out for criticism any dif-
ferent in kind or quantity from that of other PR representa-
tives. Nor is there any credible evidence that the quantity of
leads produced by them were substandard. As noted above,
I do not credit the testimony that Respondent actually re-
quired 20, or even 15, leads a day. Furthermore, in one of
the last weekly meetings attended by them, Nuriddin was
praised as being the number two producer. As to the alleged
insubordination, employees in the past, including Holguin
and Duarte, had refused, on occasion, to go to a particular
location and were not discharged.
Since two of Respondent’s stated motives for the dis-
charges are false, the inference is that Respondent wishes to
conceal an unlawful motive. Further, the third reason for
Smith’s discharge was his refusal to come to work while re-
questing to be paid for his absence. The only evidence of
such an incident is when Smith and Nuriddin went to various
governmental agencies to check on their employee rights and
so notified Respondent. In all the circumstances, including
the pretextual reasons given for the discharges and the timing
of the discharges a week after the Respondent learned of
their protected concerted activity and 1 day after Smith and
Nuriddin visited governmental agencies, I find that in dis-
charging Smith and Nuriddin Respondent was motivated by
their protected concerted activities. I further find that Re-
spondent has failed to establish that they would have been
discharged absent such protected activity. Accordingly, I find
that by discharging Smith and Nuriddin, Respondent has vio-
lated Section 8(a)(1) of the Act.
2. Frances Smith
Respondent argues that it had no obligation to F. Smith
because she did not return to work at the earliest possible
date. I find no merit in this position. Although F. Smith was
given several earlier dates for her return to work, each time
there was some medical reconsideration and her return to
work date was extended. It is undisputed that Respondent
was notified of these changes and raised no objections. How-
ever, the General Counsel has failed to establish that there
was a position available at the time F. Smith requested rein-
statement. It is undisputed that Duarte hired, and telephoned
a job order to Job Source for, a new PR representative on
the same day that F. Smith requested reinstatement. Duarte
testified that he telephoned the job order prior to F. Smith’s
requested reinstatement. Although I found Duarte to be a
generally incredible witness, there is no evidence to con-
travene his testimony since no time appears on the job order
and Moreno did not testify. The General Counsel has the
burden of establishing that there was a job opening at the
time F. Smith requested reinstatement. The General Counsel
has not met this burden. As to later vacancies, the record
does not establish that Respondent had either an obligation
348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
8 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
to reinstate F. Smith or a practice of seeking out prior em-
ployees or applicants when job vacancies occurred. There is
no evidence that F. Smith requested reinstatement on more
than the one occasion. Accordingly, I find that the General
Counsel has failed to establish that Respondent unlawfully
refused to reinstate F. Smith.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. By discharging Jimmie J. Smith and Claudine Nuriddin
because of their protected concerted activity, the Respondent
has violated Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent has not violated Section 8(a)(1) of the
Act by refusing to reinstate Frances D. Smith.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and de-
sist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent unlawfully discharged
Jimmie J. Smith and Claudine Nuriddin, I shall recommend
that Respondent offer them immediate and full reinstatement
to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges, and
make them whole for any loss of earnings they may have
suffered by reason of the discrimination against them. All
backpay shall be computed with interest on a quarterly basis,
in the manner described by the Board in F. W. Woolworth
Co., 90 NLRB 289 (1950), and with interest thereon com-
puted in the manner and amount prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). See also Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Additionally, in accordance with Sterling Sugars, 261
NLRB 472 (1982), I shall recommend that Respondent ex-
punge from its files any reference to the discharge of Jimmie
J. Smith and Claudine Nuriddin and to notify them in writing
that this has been done and that evidence of same will not
be used as a basis for future personnel actions against them.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Alameda Technical College, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because they engage in pro-
tected concerted activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Jimmie J. Smith and Claudine Nuriddin imme-
diate and full reinstatement to their former jobs, or if those
jobs no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights and privi-
leges and make them whole for any loss of earnings they
may have suffered in the manner set forth in the remedy sec-
tion of this decision.
(b) Expunge from its files any references to the discharges
of Jimmie J. Smith and Claudine Nuriddin and notify them
in writing that this has been done and that evidence of the
discharges will not be used as a basis for any future per-
sonnel actions against them.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility copies of the attached notice marked
‘‘Appendix.’’8 Copies of the notice, on forms provided by
the Regional Director for Region 32, after being signed by
the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge our employees because they
concertedly complain about, or attempt to better, their wages,
hours, or other terms and conditions of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
349ALAMEDA TECHNICAL COLLEGE
WE WILL offer reinstatement to Jimmie J. Smith and
Claudine Nuriddin and make them whole for any loss of
earnings they may have suffered because of their discharge.
WE WILL expunge from our files any references to the dis-
charges of Jimmie J. Smith and Claudine Nuriddin and notify
them in writing that this has been done and that evidence of
the discharge will not be used as a basis for any future per-
sonnel action against them.
ALAMEDA TECHNICAL COLLEGE