Apex Linen Service Inc.

National Labor Relations Board - Administrative Judge Opinions

May 28, 2020

28-CA-216351 (N.L.R.B. May. 28, 2020)

JD(SF)–13–20
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
APEX LINEN SERVICE, INC.
and 28-CA-216351
28-CA-218085
28-CA-222251
28-CA-225805
28-CA-226407
28-CA-226917
28-CA-226924
28-CA-226939
28-CA-227970
28-CA-227973
28-CA-233003
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 501, AFL-CIO
Nathan A. Higley, Esq.
for the General Counsel
Justin Crane, Esq.
Myers Law Group
for the Charging Party
John M. Naylor, Esq., and
Andrew J. Sharples, Esq.
Naylor & Braster
for the Respondent
DECISION
STATEMENT OF THE CASE
JOHN T. GIANNOPOULOS, Administrative Law Judge. This case was tried before me in
Las Vegas, Nevada over a seven-day period in April and May of 2019. Pursuant to charges filed
by the International Union of Operating Engineers, Local 501 (“Union”), a Third Consolidated
Complaint and Notice of Hearing (“Complaint”) issued, which was subsequently amended,
JD(SF)–13–20
2
alleging that Apex Linen Service Inc., (“Respondent” or “Apex”) has violated Sections 8(a)(1),
(3), (4) and (5) of the National Labor Relations Act (the “Act”). Respondent denies the unfair
labor practice allegations.1 (Tr. 7–8; GC. 1(qq)–1(ww))
Based upon the entire record, including my observation of witness demeanor, and after 5
considering the briefs filed by all the parties, I make the following findings of fact and
conclusions of law.2
I. JURISDICTION AND LABOR ORGANIZATION
10
Respondent operates a commercial laundry in Las Vegas, Nevada. Each year it
purchases and receives goods valued in excess of $50,000 directly from points outside of the
State of Nevada and has annual gross revenues in excess of $500,000. Respondent admits, and I
find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act. Respondent also admits, and I find, that the Union is a labor organization within the 15
meaning of Section 2(5) of the Act. (GC. 1 (qq), GC. 1(ss)) Accordingly, I find that this dispute
affects commerce and the National Labor Relations Board (“NLRB” or the “Board”) has
jurisdiction pursuant to Section 10(a) of the Act. See also, Apex Linen Services, Inc., 366 NLRB
No. 12, slip op. at 3 (2016).
20
II. FACTS
A. Apex’s Las Vegas Laundry Operations
Apex was founded by Joe Dramise (“Dramise”) and Glen Edward “Marty” Martin25
(“Marty Martin”), and opened its doors in August 2011. Dramise serves as Apex’s CEO and is
Respondent’s top management official. Marty Martin serves as the chief operating officer and
reports to Dramise. The rest of Respondent’s management team reports to Marty Martin. (Tr.
351–52, 356, 436, 461)
30
Respondent’s Las Vegas facility is 100,000 square feet, almost the size of two football
fields, taking up an entire city block.3 At the facility Apex launders bed sheets, towels, uniforms,
and related linens for area businesses including restaurants and casinos. Depending upon the
time of year, Apex cleans anywhere from 110,000 to 200,000 pounds of laundry on a daily basis.
Its facility is segregated into nine sections, referred to as “bays.” Bays 1 through 7 contain the 35
various washing, drying, cleaning, and finishing equipment; this area is generally referred to as
the production department/area. Laundry production starts in Bay 1 and works its way down
towards Bay 7. (Tr. 24, 231, 794, 1046)
1 Transcript citations are denoted by “Tr.” with the appropriate page number. Citations to the General Counsel,
Respondent, and Judge’s exhibits are denoted by “GC,” “R,” and “ALJ” respectively. Transcript and exhibit
citations are intended as an aid only. Factual findings are based upon the entire record and may include parts of the
record that are not specifically cited.
2 Testimony contrary to my findings has been specifically considered and discredited. Witness demeanor was the
primary consideration used in making all credibility resolutions.
3 See Judson v. Bd. Of Supervisors of Mathews City, VA, Virginia, No. 4:18CV121, 2019 WL 2558243, at *5 (E.D.
Va. June 20, 2019) (noting that one football field is 57,600 square feet).
JD(SF)–13–20
3
Respondent uses three tunnel washers and 18 large conventional washing machines to
clean the laundry. The tunnel washers are anywhere from 120–150 feet long. Each tunnel
washer contains a long tube with an auger running through the middle; dirty laundry is deposited
in one end, is moved through the tunnel by the auger, and in due course comes out clean at the
other end. Once clean, the laundry is transported to dryers via a shuttle system and conveyors. 5
Respondent has 12 large dryers dedicated to the tunnel washers and a dozen smaller dryers for
the conventional washers. Six ironing lines are used to press the various laundered items, and
multiple machines stack, fold, and package the finished laundry. Apex also has dry cleaning
equipment which is kept in Bays 7 and 8. Bay 9 is an empty area, located at the end of the
building near the administrative offices, which is used as a repair shop. Bay 10 is the smallest 10
bay. It contains the administrative offices and a shop area used by the engineers to dress for
work and stow their tools; sometimes the tool area is referred to as Bay 9½. (Tr. 79, 113, 125,
231–35, 797, 1045, 1267)
To operate its commercial laundry, Respondent’s employs about 350 employees, the vast 15
majority of which work in the production department operating the various equipment used to
clean, dry, press, and package laundry. Apex also employs engineers whose job it is to maintain
the physical plant, including all of the production equipment. (Tr. 60, 233)
In 2018, the engineers were categorized into two groups: utility engineers and 20
maintenance engineers. The utility engineers were considered less skilled than the maintenance
engineers. The total number of engineers varied between 10 and 14. In July 2018 maintenance
engineers received about $33 per hour, while utility engineers were paid $21.45 per hour.
During this time period, Respondent had three shifts, day shift, swing shift, and graveyard shift.
And Apex generally tried to ensure there were one or two maintenance engineers assigned to 25
each shift. (Tr. 57, 60–61, 237–38) (GC. 3, 24)
The engineering department is overseen by the director of engineering Keith Marsh
(“Marsh”). Marsh was hired by Respondent into this position sometime in 2016. Eugene
“Gene” Sharron (“Sharron”) works as the chief engineer. Sharron has held this position for 30
about 4 years and before his promotion worked for Respondent as an engineer. (Tr. 22, 251,
556–57)
On February 6, 2017, by a vote of 10 to 4, the engineers voted to unionize.4 And on
February 15, 2017 the Union was certified as the exclusive collective-bargaining representative 35
of Respondent’s engineers, including both the utility and maintenance engineers. The facts
relevant to the Complaint allegations in this matter arise within the larger context of the Union’s
organizing efforts and the resulting litigation which required the reinstatement of three engineers
that Apex unlawfully fired in 2017. As it is within this framework that the alleged unfair labor
practices unfold, a review of the history between the parties and the resulting litigation is 40
necessary before addressing the substantive Complaint allegations. (GC. 1(qq), 1(ss))
4 I take administrative notice of the tally of ballots in Apex Linen Service, Inc., 28-RC-191728. Rockwell
Automation/Dodge, 330 NLRB 547, fn. 4 (2000) (Board takes administrative notice of the case number and tally of
ballots in a related representation proceeding). See also Overstreet v. Apex Linen Services, No. 17-CV-02923, 2018
WL 832851, at * 1 (D. Nev. Feb. 12, 2018) (noting the engineers voted in favor of the union by a vote of 10 to 4).
JD(SF)–13–20
4
B. The Union’s Organizing Drive and Related Proceedings.5
In January 2017, the Union filed a petition to represent Apex’s engineers. Before the
company received a copy of the petition, Union Representative Charles “Ed” Martin (“Ed
Martin”) met with Marty Martin and told him the Union was organizing the engineering 5
department.6 After Ed Martin left, Marty Martin asked Sharron if he knew anything about the
organizing effort; Sharron did not but said he would find out. Starting on January 24, 2017,
Sharron interrogated employees by asking each engineer, one by one, if they knew anything
about the organizing drive; they denied knowing anything and he reported this information back
to Marty Martin. On about February 1, Dramise called engineers Adam Arellano (“Arellano”) 10
and Joseph Servin (“Servin”) into a meeting and unlawfully threatened adverse consequences if
the Union was voted in. Arellano was the one who had originally contacted the Union in July
2016. On that same day, Sharron told Servin that he had figured out who the union supporters
were, naming three engineers including Arellano and Charles Walker (“Walker”).
15
The Union’s February 6, 2017 election victory was the first time that any of Apex’s
employees were represented by a labor union. The day after the election, Respondent
accelerated its closure of the engineers’ break room and failed to bargain with the Union over the
effects of the closure. Then, on February 13, Respondent terminated Arellano. Two days later,
on February 15, the day of the Union’s certification, Apex laid off Walker, who had served as the 20
Union’s only election observer on February 6. And, on May 2 Respondent discharged Servin.
Also, after the Union’s certification, Respondent made unilaterally changes to employee work
schedules, changed their cell phone policy, dealt directly with the engineers regarding their
schedules, failed to notify and bargain with the Union about the discharges of Arellano, Walker,
and Servin, and refused to provide the Union with necessary and relevant information. 25
The Union filed numerous unfair labor practices charges over Apex’s conduct and on
August 31, 2017, the Regional Director for NLRB Region 28 (“Regional Director”) issued a
consolidated complaint alleging that Apex’s conduct violated Sections 8(a)(1), (3), and (5) of the
Act. A hearing on the unfair labor practice allegations opened on October 10, 2017, was 30
adjourned, and resumed two months later, closing on December 6. Meanwhile, in November
2017 the Regional Director filed a petition for a temporary injunction, pursuant to Section 10(j)
of the Act, in the United States District Court for the District of Nevada.
After briefing and oral arguments, on February 12, 2018, the District Court granted the 35
Regional Director’s 10(j) petition in pertinent part. See Overstreet v. Apex Linen Services, Inc.,
No. 17-CV-02923, 2018 WL 832851 (D. Nev. Feb. 12, 2018). As part of its relief, the District
Court enjoined Apex from, among other things: interrogating employees; creating the
impression of surveillance; discriminating against employees because of their union support;
making unilateral changes to employee working conditions; failing to provide the Union with 40
necessary and relevant information; and failing to bargain in good faith. Id. at * 14–15. The
5 Unless otherwise noted, the background facts in this section are taken from Apex Linen Services Inc., JD(SF)-15-
18, 2018 WL 2733700 (2018), which was adopted by the Board on July 23, 2018, in the absence of exceptions, and
from the District Court’s decision in Overstreet v. Apex Linen Services, No. 17-CV-02923, 2018 WL 832851 (D.
Nev. Feb. 12, 2018).
6 Ed Martin and Marty Martin are not related. (Tr. 352)
JD(SF)–13–20
5
District Court also ordered affirmative relief, and required Apex to offer Arellano, Servin, and
Walker immediate reinstatement in writing, within 10 days of the Court’s order, “to their former
jobs, or if those jobs no longer exist, to substantially equivalent positions of employment,
without prejudice to their seniority and other rights and privileges previously enjoyed, displacing
if necessary any workers hired or transferred to replace them.” Overstreet, 2018 WL 832851, at 5
* 15.
On June 6, 2018, Administrative Law Judge Ariel Sotolongo issued his decision in the
underlying unfair labor practice proceeding finding that Apex violated Section 8(a)(1) of the Act
by: interrogating employees; threatening employees with adverse consequences if they 10
unionized; and creating the impression that employee union activity was under surveillance.
Judge Sotolongo also found that Respondent violated Section 8(a)(3) of the Act by: discharging
or laying off Arellano, Servin, and Walker because of their union support; and accelerating the
closure of the engineers’ break room in retaliation for their decision to unionize. Finally, Judge
Sotolongo concluded that Apex violated Section 8(a)(5) of the Act by: changing employee work 15
schedules without bargaining with the Union; bypassing the Union and dealing directly with
employees about their schedules; disciplining employees without first notifying and bargaining
with the Union; and failing to furnish the Union with necessary and relevant information. Apex
Linen Services Inc., JD(SF)-15-18, 2018 WL 2733700 (2018) (“Sotolongo decision”). No
exceptions were filed to the Sotolongo decision and pursuant to Section 102.48(a) of the Board’s 20
Rules and Regulations it became the decision and order of the Board. On July 23, 2018, the
Board entered its final order adopting the Sotolongo decision.
Regarding the injunction, the District Court retained jurisdiction until the Board issued its
final order. See Overstreet v. Albertson’s LLC, 868 F.Supp.2d 1182, 1190 (D. N.M. 2012) 25
(District Court retains jurisdiction over an action filed under Section 10(j) of the Act until a final
order issues in the underlying action). Therefore, upon notification that the Board’s final order
issued, the District Court vacated its order and dismissed the 10(j) petition on August 10, 2018.
C. Petition to Decertify the Union30
On February 20, 2018, eight days after the 10(j) order issued, engineer Kevin McCann
filed a petition to decertify the Union in Case 28-RD-215076.7 One week later, the Regional
Director sent a letter to the parties stating that the petition would be held in abeyance pending the
investigation and disposition of the unfair labor practice charges filed by the Union, regarding 35
the matters that were being heard by Judge Sotolongo.
The evidence shows that Respondent was involved in the decertification effort. Both
Sharron and Marsh signed the decertification petition; Marsh on February 9, 2018 and Sharron
on February 12. Also, Sharron testified that he told the employees who wanted to decertify the 40
Union that “if it doesn’t get cleared up and people come back to reality,” he would help them get
a lawyer for the decertification effort. (Tr. 676) He then took steps to find a lawyer and directed
the lawyer to McCann. Ultimately, the Regional Director dismissed the petition on April 13,
7 See https://www.nlrb.gov/case/28-RD-215076, and related documents filed in the case. Lord Jim’s, 264 NLRB
1098, 1098 fn.1 (1982) (The Board may take judicial notice of its own files.); Baldwin Locomotive Works, 89 NLRB
403, 403 fn. 2 (1950) (“The Board takes judicial notice of its prior proceedings.”).
JD(SF)–13–20
6
2018, based upon the investigation of the charges and the evidence adduced at the unfair labor
practice hearing before Judge Sotolongo. (Tr. 32, 609, 675–80; GC. 48)
D. Bargaining for an Initial Contract
5
Respondent’s bargaining obligation began as of the Union’s February 6, 2017, election
victory. Notwithstanding, face to face bargaining for an initial contract did not begin until nearly
three months later, on or about April 27, 2017.8 Marty Martin served as the Respondent’s chief
negotiator from the start of bargaining until sometime in mid to late June 2018, when he was
replaced by Dramise. Ed Martin served as the Union’s primary bargaining representative 10
throughout bargaining, and at times he was accompanied by various employees. After they were
discharged, and before they returned to work at the facility, Arellano, Servin, and Walker
attended at least one such bargaining session. On June 6, 2018, before Dramise replaced Martin
as chief negotiator, the Sotolongo decision issued. Soon after, when Dramise took over as
Respondent’s chief negotiator, the parties quickly reached agreement on the terms of a CBA, and 15
by July 9, the Union was planning for a ratification vote. After nearly 15 months of bargaining,
the parties signed a collective-bargaining agreement (“CBA”) on July 20, 2018. After the CBA
was signed, in about August 2018, Arellano and Servin became the Union’s shop stewards at the
facility. (Tr. 38–39, 511–13, 516, 557, 732, 735–36, 1010–11; GC. 3; GC. 24(a))
20
III. THE 8(a)(3) AND 8(a)(4) ALLEGATIONS IN THE COMPLAINT
A. Legal Standard
1. Wright Line applies to the 8(a)(3) and 8(a)(4) allegations25
The Board applies the burden shifting analysis set forth in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983), where the employer’s motivation is
at issue involving alleged 8(a)(3) and 8(a)(4) violations of the Act.9 Freightway Corp., 299 30
NLRB 531, 532 fn.4 (1990) (noting that Wright Line applies to 8(a)(4) as well as 8(a)(3)
violations). Under this framework, the General Counsel must prove by a preponderance of the
evidence that employee protected activity was a motivating factor for the employer’s actions.
The elements required to support such a showing are union or other protected activity,
knowledge of that activity, and animus on the part of the employer. See, e.g., Consolidated Bus 35
Transit, 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009); See also Tschiggfrie
Properties, Ltd., 368 NLRB No. 120, slip op. at 8 (2019) (noting that the evidence of animus
must be sufficient to establish a causal relationship between the employee’s protected activity
and the employer’s action against the employee).
40
8 See Apex Linen Services Inc., JD(SF)-15-18, slip op. at 46, 2018 WL 2733700 (2016).
9 Wright Line, 251 NLRB 1083 (1980), also applies to Section 8(a)(1) allegations involving employee concerted
activity where the employer’s motivation is at issue. Tortillas Don Chavas, 361 NLRB 101 (2014) (applying Wright
Line to 8(a)(1) allegations involving employee concerted activity). Here, the Complaint’s conclusory paragraphs
(paras. 9–13), do not allege that the adverse actions taken against Arellano, Servin, and Walker independently
violated Section 8(a)(1) of the Act. They are only alleged as violations of Sections 8(a)(3) and 8(a)(4). (GC. 1(qq),
GC. 1(tt), GC. 1(ww))
JD(SF)–13–20
7
If the General Counsel makes this initial showing, the burden of persuasion shifts to the
employer to prove, as an affirmative defense, that it would have taken the same action even if the
employee had not engaged in protected activity. Consolidated Bus Transit, 350 NLRB at 1066;
see also Ready Mixed Concrete Co. v. NLRB, 81 F.3d 1546, 1550 (10th Cir. 1996) (by shifting
the burden the employer’s justification becomes an affirmative defense). An employer cannot 5
simply present a legitimate reason for its action but must persuade by a preponderance of the
evidence that the same action would have taken place even in the absence of the protected
activity. Rhino Northwest, LLC, 369 NLRB No. 25, slip op. at 3 (2020). (internal quotations and
citations omitted). “In other words, a respondent must show that it would have taken the
challenged adverse action in the absence of protected activity, not just that it could have done 10
so.” Id. (italics in the original) Where an employer’s explanation is “pretextual, that
determination constitutes a finding that the reasons advanced by the employer either did not exist
or were not in fact relied upon.” Limestone Apparel Corp., 255 NLRB 722, 722 (1981), enfd.
705 F.2d 799 (6th Cir. 1982). And, where the “proffered non-discriminatory motivational
explanation is false even in the absence of direct motivation the trier of fact may infer unlawful 15
motivation.” Roadway Express, 327 NLRB 25, 26 (1998).
2. Employee protected activity and animus
Here, it is undisputed that Arellano, Servin, and Walker all engaged in activities in 20
support of the Union and otherwise assisted the Union in its February 6, 2017 election victory.
Indeed, they were unlawfully fired in 2017 because of these union activities, which are well
documented in the Sotolongo decision and do not warrant repeating here. After the unlawful
terminations, and before they actually started working again at the plant, the three continued to
engage in activities on behalf of the Union by participating in negotiations for an initial CBA in 25
February 2018. And, after the contract was signed, both Arellano and Servin became the shop
stewards for the engineering unit. It is also undisputed that Respondent knew Arellano, Servin,
and Walker participated in Board proceedings against Respondent, and were the subject of the
District Court 10(j) injunction proceedings.
30
Respondent’s animus against employee protected activity in general, and against the
protected activities of Arellano, Servin, and Walker specifically, is clearly established by the
findings in the Sotolongo decision. See Success Village Apartments, Inc., 348 NLRB 579, 579
fn. 4 (2006) (Board affirms judge’s reliance on background evidence, animus, and intent to
retaliate against employees who were prominent union supporters, established by ALJ in 35
previous proceeding); 1621 Route West Operating Company, LLC, 364 NLRB No. 43, slip op. at
16 (2016) (Board’s findings in previous cases show employer’s “animus towards the union
activities of its employees, and the union activities of the LPNs in particular.”) (citing St. George
Warehouse, 349 NLRB 870, 878 (2007) (relying on previous Board decisions finding violations
of Sections 8(a)(3) and (1) as evidence of animus)). Respondent’s anti-union animus, which I 40
find was harbored by all of Apex’s management and supervisory team, was also clearly
articulated by Dramise who testified that before the union drive Servin and Arellano used to be
good employees “[a]nd then this union thing happened, and they decided to go rogue.” (Tr. 465)
Other than the union, Dramise said he did not know why “two good employees all of a sudden
became bad actors, bad players, and created a lot of problems in the Company.” (Tr. 465) These 45
statements are clear evidence of Respondent’s animus. Knoxville Distribution Co., 298 NLRB
JD(SF)–13–20
8
688, 688 (1990), enfd. 919 F.2d. 141 (6th Cir. 1990) (employer’s speech, made the same day
three employees were reinstated following their unlawful discharge, saying the company “did not
need ‘troublemakers,’ evidenced the Respondent’s continuing anti-union animus towards the
employees); Ramada Inn, 172 NLRB 248, 251 (1968) (referring to employee as “troublemaker”
evidence of unlawful motive); United Parcel Service, 340 NLRB 776, 777 (2003) (saying 5
employee was “troublemaker” because of his involvement in filing grievances is evidence of
animus). Moreover, at a time when the CBA was being finalized, Sharron told Walker that he
was going to use the union contract against employees to get them fired and “was going to sue
the Union and sue all those sons of bitches . . . the engineer or the union people for slandering his
name.” Ready Mixed Concrete Co. v. NLRB, 81 F.3d 1546, 1552 (10th Cir. 1996) (manager’s 10
statement was evidence of antiunion animus when he told an employee that, referring to the
union, “as long as he was there, those scum-sucking, lazy, sorry-ass son of a bitches wouldn’t get
back in”). As set forth above, and as further outlined in the remainder of this decision, the
evidence clearly shows that Respondent harbored animus against Arellano, Servin, and Walker
specifically because of their union and other activities protected by the Act. 15
Accordingly, for the various 8(a)(3) and 8(a)(4) allegations set forth below, I find that the
General Counsel has established a prima facie case that Respondent’s actions were unlawfully
motivated. Therefore, the burden of persuasion shifts to Respondent to prove that it would have
taken the same adverse actions against Arellano, Servin, and Walker even if they had not 20
engaged in activities protected under the Act.
B. The Reinstatement of Arellano, Servin, and Walker Pursuant to the 10(j)
1. The three engineers are put on paid administrative leave25
Under the District Court’s February 12, 2018 injunction order, Respondent was obligated
to offer Arellano, Servin, and Walker reinstatement by February 22.10 Respondent mailed letters
dated February 22, 2018 to the discharged engineers offering them “immediate reinstatement,”
but the letters told them not to report to work.11 (GC. 35, 40) Instead, they were placed on paid 30
administrative leave until further notice. Meanwhile, on February 22, Respondent filed an
“Emergency Motion” asking the District Court to reconsider its reinstatement order. Among its
arguments, Respondent claimed that the reinstatement of Arellano, Servin, and Walker would
“create chaos and foster distrust in the workplace,” that it had received a petition to decertify the
Union from “currently employed engineers” and that the “impending decertification vote” could 35
render moot the discharged engineers’ employment status along with the remaining issues before
10 I have taken judicial notice of the District Court and Ninth Circuit dockets and pleadings from the related 10(j)
injunction proceeding in Overstreet v. Apex Linen Services, Inc., No. 17-CV-02923, 2018 WL 832851 (D. Nev. Feb.
12, 2018), appeal docketed, No. 18-15370 (9th Cir. March 6, 2018). See Powell v. Rios, 241 Fed.App’x 500, 501 fn.
1 (10th Cir. 2007) (court has discretion to take judicial notice of publicly filed court records that have a direct
relation to the matters at issue); McVey v. McVey, 26 F. Supp. 3d 980, 984 (C.D. Cal. 2014) (consolidating cases and
noting that a court can take judicial notice of court filings pursuant to Fed. R. Evid. 201).
11 Only the letters sent to Arellano and Servin were introduced into evidence. (GC. 35, 40) However, no party
contends that Walker was treated any differently.
JD(SF)–13–20
9
the court.12 The same day it was filed, the District Court denied the motion.13 (Tr. 734, 1010;
GC. 35, 40)
On March 5, 2018, Respondent filed a Notice of Appeal regarding the injunction, which
was docketed by the Ninth Circuit Court of Appeals on March 6. On March 7, Respondent again 5
filed with the District Court a motion to stay the reinstatement order pending appeal.14 On April
19, 2018, the District Court denied the motion finding it lacked jurisdiction.15 Pursuant to a
stipulated motion by the parties, the Ninth Circuit entered an order voluntarily dismissing the
appeal on July 16, 2018.16 One week later, the Board adopted the Sotolongo decision, in the
absence of any exceptions having been filed.10
2. Respondent requires the three engineers to complete new paperwork
During the same period in which Respondent was trying to get the reinstatement order
overturned, on February 26, 2018, Arellano, Servin, and Walker were present at a collective-15
bargaining meeting when the issue of their reinstatement came up. During the meeting Marty
Martin told the three engineers they needed to go to a company called AdvanStaff to complete
certain paperwork so they could start receiving benefits. Although Respondent had its own
internal human recourses office, it also used AdvanStaff for hiring and human resources
purposes. (Tr. 217, 735–36, 1010–11)20
After negotiations ended that day, Arellano, Servin and Walker went to AdvanStaff, and
asked to speak with a representative responsible for Apex employee benefits. They eventually
spoke with someone who told them that AdvanStaff had not received any notification from Apex
about their reinstatement, or about what documents they were supposed to sign. Moreover, the 25
three engineers were told that they would not be able to complete any applications or do
whatever was needed for them to get back into the system until Apex contacted AdvanStaff. The
representative further said that AdvanStaff needed to speak with Marty Martin about the matter
and would then contact the employees accordingly. (Tr. 735–37, 1012, 1167)
30
The three engineers did not hear anything until March 6, when Arellano received a call
from an Apex human resources employee to set up an appointment at AdvanStaff. The next day
Arellano, Servin, and Walker went back to AdvanStaff. When they arrived all three were given
a packet of documents to review, and were also asked to sign: (1) a Policy Agreement Receipt &
Acknowledgment (“Policy Acknowledgment”); (2) an Employee Handbook Receipt & 35
Acknowledgment (“Handbook Acknowledgment”); and (3) a Confidentiality & Non-Compete
Agreement (“Non-Compete Agreement”). Arellano told the AdvanStaff representative that the
Non-Compete Agreement would not apply to them, and the representative removed the
12 See Emergency Motion to Stay the Order Granting Petition for Temporary Injunction at 2–3, 18, Overstreet v.
Apex Linen Services, Inc., No. 17-CV-02923 (D. Nev. Feb. 22, 2018), ECF. No. 37.
13 See Order Denying Emergency Motion to Stay and for Reconsideration, Overstreet v. Apex Linen Services, Inc.,
No. 17-CV-02923 (D. Nev. Feb. 22, 2018), ECF. No. 38.
14 Motion to Stay Pending Appeal at 3, Overstreet v. Apex Linen Services, Inc., No. 17-CV-02923 (D. Nev. March 7,
2018), ECF. No. 41.
15 Order Denying Motion to Stay Pending Appeal and Indicative Ruling, Overstreet v. Apex Linen Services, Inc., No.
17-CV-02923 (D. Nev. April 19, 2018), ECF. No. 50. (2018 WL 2245145)
16 Overstreet v. Apex Linen Services Inc., No. 18-15370, 2018 WL 4201309 (9th Cir. July 16, 2018).
JD(SF)–13–20
10
document from the packet. The three engineers then signed the Handbook Acknowledgment
without incident. (Tr. 737–39, 1013, 1167; GC. 36, 41 45)
As for the Policy Acknowledgment, it contained a signature line confirming receipt and
acknowledging that the following additional policies were binding upon them: Conditions of 5
Employment; Safety & Security in the Workplace; Nevada Pregnant Workers Fairness Act;
Employee Rights and Responsibilities under the FMLA; Accident/Illness in the Workplace;
Drug Free Workplace; and Notice of Privacy Practices for the Use and Disclosure of Private
Health Information. There was also a space for the employees to place their initials next to each
specific policy. (GC. 36, 41, 45) 10
Arellano, Servin, and Walker all signed the Policy Acknowledgment, and placed their
initials next to all of the policies except for the Conditions of Employment.17 The three
discussed the matter and decided together that they would not initial the Conditions of
Employment, as they had concerns about the document. Therefore, the three left AdvanStaff that 15
day without acknowledging the Conditions of Employment and without signing the Non-
Compete Agreement. (Tr. 1014, 1168–69; GC. 36, 41, 45)
In the early afternoon of March 8, Marty Martin emailed Union Representative Ed Martin
saying that Respondent had complied with the District Court order by offering reinstatement to 20
Arellano, Servin, and Walker, and that the conditions of employment existing at the time of their
terminations continued. Therefore, in his email Marty Martin asked the Union to instruct
Arellano, Servin, and Walker to: (1) either sign the forms presented to them by AdvanStaff,
including the Non-Compete Agreement and Conditions of Employment; or (2) have each
employee specifically agree that the paperwork the employees had originally signed prior to 25
being terminated remained in full force pending the outcome of contract negotiations. If they did
not do so, Marty Martin said that Respondent would consider their actions to be a rejection of
Apex’s reinstatement offer. Ed Martin replied saying that Respondent was unilaterally changing
working conditions by requiring the employees to sign new documents. Therefore, Ed Martin
asked for copies of the original Non-Compete Agreements and Conditions of Employment 30
signed by the Arellano, Servin, and Walker, along with those signed by all other bargaining unit
members. (GC. 42; Tr. 372, 508–09; GC. 42)
Later that day, Marty Martin emailed Ed Martin again requesting that the Union either:
(a) direct Arellano, Servin, and Walker to sign the forms presented to them by AdvanStaff, or (b) 35
specifically agree that their pre-termination forms remained in full force and effect pending the
outcome of contract negotiations. (GC. 43) He further said that, if they did not do so by the end
of the day, Respondent would treat their conduct as a rejection of the reinstatement offers.
Finally, Marty Martin’s wrote that, while some of the forms provided to Arellano, Servin, and
Walker to sign may have been different from those they had previously signed when they were 40
originally hired, the company updated their forms periodically, and if the three engineers did not
want to sign the new forms, all Respondent asked was that they acknowledge the forms they had
17 Arellano also did not initial the Nevada Pregnant Workers Fairness Act policy, as he did not believe it applied to
him. (Tr. 740)
JD(SF)–13–20
11
originally signed remained in full force.18 Ed Martin replied by email about a half-hour later
telling Marty Martin to pay attention to the Union’s request and asked that Respondent provide
the documents the Union had previously requested. (GC. 43, Tr. 372)
While the two Martins were exchanging emails, Arellano, Servin, and Walker went back 5
to AdvanStaff on March 8. Sometime that day Ed Martin had called Arellano saying that Marty
Martin was going to fire him if he did not sign the AdvanStaff paperwork. Therefore, they
needed to get back to AdvanStaff as quickly as possible to sign the documents; Ed Martin had a
similar conversation with Servin. Arellano called Servin and Walker and the three went back to
AdvanStaff. Once there, they signed the Non-Compete Agreement, initialed the space 10
acknowledging the Conditions of Employment policy, and re-signed the Policy
Acknowledgment.19 After completing the documents, an AdvanStaff representative put the
paperwork in a file. Arellano asked if anything else was needed, and the representative said the
documents should now be complete. (Tr. 741–44, 1015–16; GC. 36, 41, 45)
15
The morning of March 9, seemingly unaware that the three engineers had returned to
AdvanStaff to complete their paperwork, Marty Martin emailed Ed Martin saying “you have not
responded with a position and the three reinstated employees are still refusing to complete and
sign the forms. Are you rejecting the offer of reinstatement?” (GC. 43) Ed Martin replied about
10 minutes later writing that Marty Martin “obviously [did] not understand how the system 20
works,” and noting that Arellano, Walker, and Servin had signed their AdvanStaff paperwork
during the afternoon of March 8. (GC. 43)
Even though they had now finalized all the paperwork that they were originally asked to
complete, Arellano, Servin, and Walker were not finished with AdvanStaff. Respondent 25
required them to go back to AdvanStaff again to complete even more paperwork. According to
Servin, he spoke with someone at AdvanStaff who told him that Marty Martin wanted brand new
paperwork filled out. Therefore, on March 9 the three engineers once again went back to
AdvanStaff. This time, Arellano, Servin, and Walker were given different paperwork to
complete, documents that applied to newly hired employees. The packet contained paperwork 30
for a background check, pre-employment screening, work history, criminal activity, references,
etc. They completed all the documents and then asked the AdvanStaff representative to make
sure they had finalized everything that was needed and that Marty Martin was happy. The
AdvanStaff representative went away, and eventually came back saying that everything was fine.
Notwithstanding the fact they had now visited AdvanStaff four times, and had completed all the 35
paperwork that Apex wanted, without explanation Respondent did not allow Arellano, Servin,
and Walker to physically return to work at the laundry until March 29. (Tr. 39, 744–45, 752,
933, 1017–18)
During his testimony, Marty Martin confirmed that Arellano, Servin, and Walker had 40
previously completed all the necessary paperwork needed to work for Respondent when they
originally hired; Arellano and Servin were hired in 2011 and Walker in 2015. He also confirmed
18 There is no evidence that other employees were required to update their forms or reconfirm that the paperwork
they originally signed was still in effect.
19 Servin did not re-sign the Policy Acknowledgment, as he testified that the AdvanStaff representative told him he
only needed to initial the Conditions of Employment section. (Tr. 1015)
JD(SF)–13–20
12
that he was the one that required them to complete a new hire packet after the District Court
injunction. Marty Martin claimed that Apex did not control the process, and that AdvanStaff
“had to have them re-enroll and everything.” (Tr. 374) Notwithstanding, he also testified that he
was the one actually giving instructions to AdvanStaff, and those instructions included having
Arellano, Servin and Walker complete new-hire paperwork. Marty Martin testified that he had 5
them complete the new hire paperwork because he was concerned Arellano, Servin, and Walker
would claim they were being reinstated under different terms than those that were in place when
they were originally hired. (Tr. 373–74; GC. 34, 39, 46)
3. Analysis10
Complaint paragraph 6(a) alleges that Respondent violated Section 8(a)(3) and (4) of the
Act by requiring Arellano, Servin, and Walker to sign various paperwork, or otherwise agree that
their previous signed agreements remained in effect, as a condition of their interim reinstatement
pursuant to the District Court injunction order. At its core, this allegation relates to Respondent 15
giving Arellano, Servin, and Walker the runaround instead of reinstating them to work at the
facility as required by the District Court’s 10(j) order. Pursuant to the 10(j) order, Respondent
was required to reinstate Arellano, Servin, and Walker to their former jobs by February 22, 2018.
When they were fired in 2016, Arellano, Servin and Walker were all working inside the plant as
engineers and had already completed all the paperwork needed to work for Apex. Instead of 20
putting the three engineers back to work inside the facility as ordered, Respondent placed them
on paid administrative leave, made them go back and forth to AdvanStaff to complete various
documents, eventually making them sign paperwork as newly hired employees, and then did not
allow them to actually start working again until March 29, 2018.
25
Applying the Wright Line burden shifting framework, I find the General Counsel has
shown that Arellano, Servin, and Walker all engaged in activities that are protected under the
Act, and Respondent knew about their conduct. The evidence also establishes that Respondent
harbored animus against their protected conduct. Along with the animus already outlined above,
anti-union animus is also shown by the fact that Respondent’s supervisors were assisting with 30
and promoting the decertification petition. “The law is clear, Section 8(a)(1) of the Act makes it
unlawful for an employer to instigate or promote a decertification petition.” Lomasney
Combustion, Inc., 273 NLRB 1241, 1243 (1984). Here, both Marsh and Sharron signed the
decertification petition. Also, Sharron told employees to “get this over with,” in reference to the
Union, and said that he would help employees get a lawyer for the decertification effort if people35
did not come back to reality; Sharron then actually found a lawyer and directed the attorney to
contact the decertification petitioner. I find these efforts are evidence of Respondent’s anti-union
animus particularly when, at the same time, Apex was trying to get the District Court to overturn
the reinstatement order, arguing that an “impeding decertification vote” would render
reinstatement moot. In sum, there is ample evidence of animus in the record to establish a causal 40
relationship existed between the protected activities of Arellano, Servin, and Walker and the
actions that Respondent’s took against them.
Regarding this allegation, in deciding whether the General Counsel has presented a prima
facie case of discrimination, the key issue is whether Respondent’s placing Arellano, Servin, and 45
Walker on paid administrative leave, instead of reinstating them to work inside the facility,
JD(SF)–13–20
13
constitutes an adverse employment action. In the circumstances presented here, I find that it
does.
“Although being on administrative leave, and therefore getting paid, is better than being
on nonpay status,” it still denied the three engineers the potential opportunity to work overtime.20 5
Postal Service, 352 NLRB 923 (2008) (putting employee on paid administrative leave was an
adverse employment action as it denied the employee the opportunity to work overtime).
Placing Arellano, Servin, and Walker on administrative leave also prevented them from gaining
additional work experience, which would have been particularly important for Walker, as he was
classified as a B-Level engineer at the time.21 Dahlia v. Rodriguez, 735 F.3d 1060, 1079 (9th 10
Cir. 2013), cert. denied 134 S.Ct. 1283 (placing police officer on paid administrative leave would
constitute an adverse employment action if it prevented him from furthering his investigative
experience). Also, the stigma of keeping Arellano, Servin, and Walker off the shop floor, at a
time when the District Court had ordered their reinstatement, is also sufficient to constitute an
unlawful employment action as it would likely deter other employees from engaging in protected 15
activities. Id. (“general stigma resulting from placement on administrative leave appears
reasonably likely to deter employees from engaging in protected activity,” and would therefore
constitute an unlawful employment action) (internal quotation omitted). This is especially true
here, where Respondent kept Arellano, Servin, and Walker away from the facility for over 30
days while it was hoping for an impending decertification vote.22 The Union’s biggest advocates 20
were therefore unable to discuss the merits of unionization with their colleagues at the plant,
while at the same time Sharron was telling employees to “get this over with” and saying he
would help them get a lawyer for the decertification effort. The absence of Arellano, Servin, and
Walker from the workplace at this key time sent a clear message to employees that their destiny
is controlled by Respondent, as not even a Federal District Court injunction could bring the three 25
engineers back to work inside the facility. Cf. Knutson v. AG Processing, Inc., 302 F. Supp. 2d
1023, 1039 (N.D. Iowa 2004) (“Staying the court’s order of reinstatement would send the
message that discriminatory employers can continually run over victims of discrimination and
make a mockery of civil rights legislation.”) (internal quotation omitted). As such, the general
stigma resulting from Arellano, Servin, and Walker being placed on administrative leave at this 30
key time supports a finding that an unlawful employment action occurred as it would likely deter
other employees from engaging in protected activity. Rodriguez, 735 F.3d at 1079.
Accordingly, having presented a prima facie case of discrimination, the burden of
persuasion shifts to Respondent to show that it would have taken the same actions even in the 35
absence of employee protected activity. Apex has not met its burden. Respondent has not
presented a valid justification as to why Arellano, Servin, and Walker were required to fill out
additional paperwork before returning to work in the plant. As noted earlier, all three had
20 It appears that Respondent’s engineers worked overtime fairly regularly, as Respondent had accused Servin of
directing Apex engineers in 2017 to refuse to work overtime as a form of protest regarding Walker’s termination.
(GC. 57)
21 Before the CBA was signed, Respondent’s maintenance engineers were classified into “A level” and “B level”
designations based upon their skills. (Tr. 235–36)
22 Along with being posted at Respondent’s facility, the District Court required its order be read aloud to employees
during a mandatory meeting by no later than March 4, 2018. Apex Linen Services, Inc., 2018 WL 832851 *16.
Thus, all unit employees would have known that the District Court had ordered Arellano, Servin, and Walker to be
reinstated, and could see for themselves that, despite the court order, they were not actually working at the plant.
JD(SF)–13–20
14
already completed the necessary paperwork required to work at Apex when they were originally
hired. And, there is no evidence that anything was wrong with their original paperwork, nor was
any evidence presented that other employee were required to update their original paperwork.
Similarly, Respondent has presented no justification for refusing to allow the three engineers to
return to work until the end of Marsh.5
Additionally, I find that Marty Martin’s contradictory testimony as to why the three
engineers were required to complete new paperwork, before being reinstated to work on the shop
floor, is also evidence of an unlawful motive. Master Security Services, 270 NLRB 543, 551
(1984) (assertion of contradictory and unconvincing motives infers that the actual motive was 10
unlawful); Paul M. O’Neill International Detective Agency, Inc., 124 NLRB 167, 172–73 (1959)
(contradictory and unconvincing testimony creates a suspicion of unlawful motive). When asked
why the three engineers were required to complete new paperwork, notwithstanding the fact they
had already completed the required paperwork when they were originally hired, Marty Martin
testified that AdvanStaff controlled the process and needed the employees to “re-enroll.” 15
However, Marty Martin then testified that he was the one actually giving instructions to
AdvanStaff, telling them to have Arellano, Servin, and Walker fill out new hire paperwork
because he thought the three engineers would claim they were being reinstated under different
terms of employment.
20
I find that Marty Martin was controlling the entire process and was instructing
AdvanStaff the whole time. And, it is clear from the timing of the events that Respondent was
using this entire process as a pretext to keep Arellano, Servin, and Walker away from the facility,
while Apex was endeavoring to get the District Court reinstatement order overturned, or
otherwise waiting for an election to decertify the Union, while the three activists were away from 25
the workplace. Accordingly, I find that, by not timely reinstating Arellano, Servin, and Walker
to work at Respondent’s facility as required by the District Court 10(j) order, but instead
demanding that they first complete additional employment paperwork, including paperwork
designated for newly hired employees, and then waiting an additional three weeks after the
paperwork was completed before allowing them to start work at the facility, Respondent violated 30
Sections 8(a)(3) and (4) of the Act.
C. Imposing More Onerous Working Conditions on the Three Engineers After Reinstatement
On March 28, 2018, Arellano, Servin, and Walker returned to Respondent’s laundry to 35
attend lockout/tagout training. And on March 29, forty-four days after the District Court’s
February 12, 2018 injunction order, they returned to work at the facility. However, when they
returned to work on March 29, things were not as they were before. (Tr. 39, 375–76, 734, 736,
768, 1018; GC. 4, 37)
40
1. Withholding Radios and Keys
a. Facts
Before they were discharged in 2017, Arellano, Servin, and Walker had keys to all of the 45
various doors and rooms inside the laundry; they needed these keys to perform their every-day
JD(SF)–13–20
15
work as engineers. Each was also assigned a radio. Engineers use their radios throughout the
workday to communicate with their coworkers and supervisors about broken machines, work
calls, to request a part, or to otherwise just ask for help. Radios are specifically assigned to
individual employees by serial number, and Respondent keeps tracks this information. (Tr. 52,
59, 63, 87, 764, 766, 1024–26, 1175)5
When they returned to work on March 29, 2018 Arellano, Servin, and Walker were not
given a radio, even though all of the other engineers were assigned a radio. And, except for a
lockout/tag out key, Arellano, Servin, and Walker were not given any keys to the facility. Thus,
they did not have keys to open any of the individual doors and closets inside the laundry that the 10
engineers use every day, including the parts room or the electrical room.23 All of Respondent’s
other engineers had these keys, as did the supervisors. It was only Arellano, Servin, and Walker
who were denied the privilege of having keys. (Tr. 58–60, 63, 758, 762–65, 1023–25, 1175–76)
Because they did not have keys, if the three engineers needed to get a part for a repair 15
from the parts room, or needed to enter the electrical room, they could not do so but instead
needed to find somebody with keys to open the doors to these rooms. And, because they did not
have a radio to communicate with coworkers, they had to walk around the plant to find another
engineer with keys. This was both difficult and time consuming. The plant is almost the size of
two football fields and is filled with large pieces of equipment, hampers, and other machinery. 20
Walking around the facility trying to find someone with keys was, at times, like being in a maze.
(Tr. 758, 765, 768, 1023–24, 1176; R. 59)
According to Marsh, it would have been easy for Respondent to have made duplicates of
the necessary keys to give to Arellano, Servin, and Walker. And, Marsh admitted that not 25
providing them with all of the necessary keys differed from the company’s normal practice.
However, Marty Martin had decided that Arellano, Servin, and Walker were not to receive keys,
and he specifically directed Marsh to withhold keys from them. Therefore, Marsh did not give
them a general engineer’s sub-master key, which all the other engineers had. (Tr. 58–63, 386)
30
To try and justify Respondent’s decision to withhold keys from Arellano, Servin, and
Walker, Marsh testified that they did not need keys for the rooftop project they were assigned to
complete when they returned to work on March 29. However, the evidence shows that the roof
could only be accessed through a ladder in the electrical room, and they were not given keys to
the electrical room. When asked how he expected the three engineers to enter the electrical room 35
without keys, Marsh said he expected them to find another engineer and ask them to open up the
electrical room door so they could access the roof; the same would be true if they needed a part
from the parts room. For Arellano and Servin, who had the most seniority amongst the
engineers, this would mean trying to find someone with less seniority to open doors for them
each day. On about August 1, four months after they returned to work at the laundry, Arellano, 40
Servin, and Walker finally received the keys they needed for the facility. (Tr. 61–62, 88–89;
GC. 24)
23 While Marsh testified that they received a master padlock key (Tr. 58), I specifically credit the testimony of the
three engineers that they did not receive any keys to open the doors and rooms inside the facility. Even Marsh
admitted that they were not given the general engineer’s sub-master key that would give them access to the various
doors and closets in the laundry, which included the parts room and the electrical room. (Tr. 58–59)
JD(SF)–13–20
16
As for the radios, when asked why Respondent did not assign radios to Arellano, Servin,
and Walker, Marsh testified that he had sent seven radios to the repair shop in March 2018, and
he expected a fast turnaround from the repair company; however, the radios were not returned
until much later. Thus, according to Marsh, at the time Arellano, Servin, and Walker returned to 5
the facility on March 29 the company did not have any extra radios to give them. (Tr. 63, 90,
319)
The receipts from the repair company, introduced into evidence by Respondent, show
that Apex sent six radios, not seven, to be repaired on March 29, 2018, the very same day the 10
three engineers returned to the facility. The six radios were fixed and returned to Apex
intermittently over the next few months. One radio was returned on April 12, three were
returned on June 28, one was returned on July 25, and one on August 23. However, Servin was
not assigned a radio until August 10, Walker was not given a radio until August 17, and Arellano
did not get one until September 5. The records show that the three radios issued to Arellano, 15
Servin, and Walker had been repaired and returned to Respondent on June 28, 2018.24 When
asked to explain the delay between the time the repaired radios were returned to Apex, in relation
to when they were issued to the three engineers, Marsh said that it was not something that he had
on the top of his mind. (Tr. 315–17, 329; R. 29)
20
According to Marsh, when there is a shortage of radios, Apex’s practice would have been
for people to share radios, and he testified that Arellano, Servin, and Walker could have
borrowed a radio from an engineer who was not working. However, Respondent does not have a
central area where radios are stored when employee leave work. Instead, some employees take
their assigned radios home, some leave them sitting on desks, and others put them in the parts 25
room. Thus, Marsh expected Arellano, Servin, and Walker to walk around the plant to find a
spare radio lying around somewhere that they could use for their shift, and then put the radio
back where they found it when they were done for the day. That being said, Servin credibly
testified that he was not free to use radios assigned to other engineers. And, the evidence shows
that Respondent requires employees to sign a property receipt when they are issued a radio. The 30
receipt states that the employee is responsible for any damage done to the device and is required
to replace the radio at their own expense if damaged or lost. (Tr. 64, 87–88, 319, 1028; R. 29)
b. Analysis
35
The evidence shows that, before Arellano, Servin, and Walker were unlawfully fired in
2017, they had been given their own radio and set of keys. The evidence further shows that
Respondent’s engineers rely upon their keys and radios to perform work at the laundry, and
therefore these were part of their terms and conditions of employment. Arellano, Servin, and
Walker all engaged in union activities, they were being reinstated pursuant to the District Court’s 40
10(j) order, and Respondent’s animus is well documented. Therefore, the burden of persuasion
24 R. 29 #10310 and R. 29 #10314 show that Servin was assigned radio #275J270222, which Marsh signed for as
being returned on June 28, 2018. R. 29 #10308 and R. 29 #10315 show that Walker was assigned radio
#275J270194, which Marsh signed for as being returned on June 28, 2018. And, comparing R. 29 #10313 with R.
29 #10312 shows that Arellano was assigned radio #275K080435, which Marsh signed for as being returned on June
28, 2018.
JD(SF)–13–20
17
shifts to Respondent to prove that it would have withheld keys and radios from the three
engineers even absent their protected conduct. It has not done so.
Marsh admitted that it would have been easy for Respondent to make copies of the
needed keys for the three engineers, and that withholding keys from them was against the 5
company’s usual practice. As for the claim they did not need keys while working on the roof,
the evidence shows the opposite is true. The three engineers needed keys to open the electrical
room to access the roof each day, and to get parts from the parts room. And without radios,
Arellano, Servin and Walker could not communicate with their coworkers. Instead, they had to
walk around Respondent’s maze-like facility to look for someone whenever they needed 10
anything, including to open the electrical room and the parts room. Regarding the radios, there is
no cogent explanation as to why Respondent withheld radios from Arellano, Servin, and Walker
after they had been repaired and returned to Apex; Marsh’s claim that it was not on his mind is
simply not believable. Instead, I find the opposite is true. Hard Hat Services, LLC, 366 NLRB
No. 106, slip op. at 7 (2018) (“[A] trier of fact may not only reject a witness’s testimony about 15
his or her reason for an adverse action, but also find that the truth is the opposite of that
testimony.”). The radios were on his mind, and they were purposely withheld, as were the keys,
to harass and punish Arellano, Servin, and Walker because they engaged in union activities, and
because they were being reinstated pursuant to a District Court 10(j) injunction. Miners’
Welfare, Pension & Vacation Funds, 256 NLRB 1145, 1159 (1981) (finding 8(a)(4) violation 20
where employer harassed and discriminated against employee who participated in a Board
proceeding by failing to give her new keys to the front door after the lock was changed). Under
these circumstances, where Respondent does not have a credible explanation for its conduct, it
has failed to show that it would have taken the same actions against the three engineers absent
their protected activity. Accordingly, the evidence supports a finding that Respondent violated 25
Sections 8(a)(3) and (4) of the Act by withholding radios and keys from Arellano, Servin, and
Walker to punish and harass them because of their union activities and because they were being
reinstated pursuant to the District Court’s 10(j) order, or otherwise participated in Board
proceedings. Success Village Apartments, Inc., 348 NLRB 579, 587, 617 (2006) (employer
violated Section 8(a)(3) and (4) by requiring employee to perform work without the use of 30
customary or adequate equipment as a form of punishment and harassment).
2. Working on the roof
a. Facts35
Upon returning to the laundry on March 29, 2018, Arellano, Servin, and Walker were not
assigned to work back inside the facility, performing maintenance on the various machines as
they had done before they were unlawfully fired in 2017. Instead, they were assigned to work
full-time on the roof remanufacturing the laundry’s 25 evaporative coolers, commonly referred 40
to as swamp coolers, used to cool the building. Working on the roof was not common for these
three. Arellano had only worked on the roof twice in his approximately 7 years of employment
at Apex, Servin had never before worked on the roof, and had never previously been assigned to
service an evaporative cooler. As for Walker, he had worked on the rooftop coolers a couple of
times a year, but only for small projects like reattaching a belt, which would only last about an 45
hour. (Tr. 43, 52, 253–54, 379, 752-53, 760, 1018-19, 1037–38, 1172–73)
JD(SF)–13–20
18
This was the first time that Respondent had undertaken a project to completely rebuild
the swamp coolers. For general maintenance of the units, along with their seasonal start-up and
shutdown, Respondent had previous contracted with mechanical repair companies specializing in
this type of work. Sometime in 2017 Respondent decided to start performing the maintenance 5
work inhouse, and assigned a utility engineer named “DJ,” who was not skilled working on the
shop floor, to maintain the swamp coolers full time. When DJ quit during the third-quarter of
2017, Respondent finished the year using various engineers rotating on the roof to work on
cooler maintenance. In 2018 Apex decided to rebuild the coolers completely, to ensure their
longevity and continued operation. (Tr. 54–57, 73, 246, 251, 379, 385) 10
Apex started the refurbishing project about three weeks before Arellano, Servin, and
Walker were reinstated. The company established a set work schedule for all the engineers,
including Sharron, who rotated working on the roof to refurbish the coolers, and would come off
the roof if something needed repair on the shop floor. According to Sharron, in the three weeks 15
before the arrival of Arellano, Servin, and Walker, the engineering department had completed
rebuilding three swamp coolers. (Tr. 39, 559–60, 563, 619)
The swamp coolers themselves were four feet tall, three feet wide, and sat on a jack that
elevated the cooler above the roof. Each cooler had eight vented vertical panels, two panels on 20
each side. Each panel held an evaporative pod made of wood shavings; water running through
the pod would evaporate thereby generating cool air which was blown downwards into the
building. (R. 28; Tr. 48, 242–43, 254; R. 28)
The rebuilding project was quite a task. As Marty Martin testified, the engineers were 25
required to take the coolers “down to their frames basically,” cleaning and repairing the units and
replacing worn parts. (Tr. 390) Half of the swamp coolers had been on the roof since 1996, and
the other half since 2007. This level of detailed work on the coolers had never previously been
done before at Apex by anyone. (Tr. 49-50, 246, 390, 379)
30
Specifically, the engineers were tasked with removing the lids, panels, pans, and
structural beams of each unit and scraping clean all the hard water, calcium, and mineral deposits
that had accumulated over the years; in some places this buildup was over an inch thick.
According to Marty Martin, the side panels of the swamp coolers were “caked with minerals.”
(Tr. 397–98) They were also required to clean, check, remove, repair, and/or replace all drive 35
belts, sheathes, shafts, motors, and outlets. The web of pipes inside the coolers, referred to as the
spider, needed to be checked and snaked clean if clogged. The water pan at the bottom of every
cooler was to be scrapped to the bare metal and a new epoxy seal applied. The epoxy sealant
was a thick black paste, consisting of an asphalt emulsion. After hardening, the epoxy worked as
a seal and prevented any water from leaking through the pan and into the building. Finally, the 40
swamp coolers were to be washed and repainted. (Tr. 43–44, 247, 378–79, 560, 668–89, 752–
53, 951, 1019–21, 1175)
Marty Martin testified that it was his decision to assign Arellano, Servin, and Walker to
work exclusively on the roof rebuilding the swamp coolers when they returned to work on March 45
29, and that he spoke with Marsh, Dramise, and Sharron about the decision. Marsh, on the other
JD(SF)–13–20
19
hand, testified that he made the decision, and passed the instruction onto Sharron. According to
Marsh, the swamp cooler project needed completing, and “any available engineer was to go up to
the rooftop to work on it.” (Tr. 68) However, when Arellano, Servin, and Walker were assigned
to work on the swamp coolers, Sharron took all of the other engineers off the roof, returning
them to work inside the facility. When asked why Arellano, Servin, and Walker were assigned 5
to work full-time on the roof, while other engineers were removed from the swamp cooler
project, Sharron said that Respondent thought the project would be completed faster if they left
the same people on the project, Apex already had the shop floor covered at the time, and those
other engineers covering the floor were simply too busy to continue having them work on the
roof. (Tr. 41, 67–68, 378, 562–63, 618–19) 10
As for why skilled maintenance engineers were used to chip away lime and calcium, as
opposed to having less skilled utility engineers do the job, Marty Martin noted that the project
also included rebuilding the units. He further testified that, when Arellano, Servin, and Walker
were reinstated, the company already had a full complement of maintenance and utility engineers 15
which they did not want to displace to make room for the reinstated workers. This meant that
Apex now had more engineers than they had budgeted for; but Martin admitted there was more
than enough work to be completed inside the plant for all of the engineers. Therefore, according
to Marty Martin, since the company assigned the rooftop work to Arellano, Servin, and Walker
full time, there was no need to have anyone else work on this assignment. (Tr. 429–31) 20
To access the roof the engineers had to enter one of two electrical rooms. Each electrical
room had a ladder, which led up 30 feet to a metal hatch that opened onto the roof. However,
because Arellano, Servin, and Walker did not have keys, they could not open the door to reach
the ladder to get onto the roof. Instead they had to walk around the plant searching for someone 25
with keys to open the electrical room so they could climb up the ladder to start working. (Tr. 50,
58–62, 146, 286–90, 758, 791, 1036, 1176; GC. 49(c), GC. 51; R. 51)
The lack of keys and radios also affected the productivity of the swamp cooler project.
Along with wasting time trying to find someone to open the electrical room door just to start 30
work, because they did not have a radio, whenever the three engineers needed to get a part for a
swamp cooler they needed to physically go down the ladder, and then walk around the plant to
find someone to open the door to the parts room. Respondent’s lack of spare parts also affected
their ability to refurbish the swamp coolers. Multiple parts that were needed to refurbish the
swamp coolers were simply not in stock. Because they could not order parts themselves, the 35
three engineers would have to ask Sharron or Marsh to order specific parts and then wait for
them to arrive before completing their work. (Tr. 62, 65–66, 74–75, 572, 775–78, 953–54, 1023,
1030, 1048; GC. 38)
Upon their return to work at the facility, the three engineers all worked different 40
schedules. Servin worked from 8:00 a.m. to 4:30 p.m., and Walker worked the graveyard shift
from 10:00 p.m. to 8:30 a.m. Arellano worked four 10-hour shifts, starting the day at 4:00 a.m.
and ending at 2:30 p.m. Sometime in April 2018, Arellano asked Marsh if the three engineers
could change their schedules to work at the same time, in the morning, in order to be more
productive; Arellano did not think it made sense for Walker to be working alone, at night, on the 45
project. However, Marsh said that he could not change their schedules because the District
JD(SF)–13–20
20
Court injunction required them to work their original pre-discharge schedules. Arellano replied
that the District Court injunction also ordered him to be reinstated to his former job, which was
not cleaning swamp coolers, but Marsh did not reply to this comment. (Tr. 51, 67, 558, 756,
770–71, 1019, 1173)
5
When Arellano, Servin, and Walker first started rebuilding the swamp coolers they were
given putty knives to scrape the coolers clean. Eventually, they were also provided with wire
brushes, and about three weeks into the project they were given an angle grinder. Because there
is no lighting on the roof, and his entire shift was at night, Walker had to use a flashlight while
working on the roof in order to see what he was doing. About a month into the project the three 10
engineers decided that it was safer for Walker to work on the ground, instead of the roof, since
he worked alone at night. Therefore, during their shifts Arellano and Servin would bring swamp
cooler panels down from the roof, and Walker would recondition them during his graveyard shift
while working on the ground. Walker would perform this work outside, near the loading dock,
as there was an overhead light in the area. Eventually Respondent provided three drop lights for 15
the engineers to use when needed. (Tr. 51–53, 755, 771–72, 833, 946–47, 1020, 1049, 1174–75;
GC. 14)
To get materials, tools, and parts onto the roof, the three engineers used a rope tied to a
crate. They would fill the crate with whatever they needed and hoist it onto the roof. They 20
similarly used the rope to lift a water jug to the roof so they could have drinking water for the
day. (Tr. 50, 759, 1034, 1037; GC. 49(c))
When Arellano, Servin, and Walker returned to work they were provided a canopy for
shade, but it was damaged by the wind. By mid-April 2018 the daily temperature in the Las 25
Vegas area reached the low-to-mid 90’s and temperatures were consistently in this range
throughout the month of May. Because the engineers wore black uniforms, and the roof’s
surface reflected the sun, the actual temperature on the roof felt even hotter. After the canopy
was damaged, Arellano asked Marsh for a replacement, but Marsh said he did not think Marty
Martin would replace the canopy because the three engineers did not take care of it. Therefore, 30
Arellano brought his own personal canopy to use for shade, but that too was damaged by the
wind. Arellano and Servin then purchased a third canopy, which they tied to a water jug for
stability. The engineers would move the canopy from one swamp cooler to another to provide
shade while they were working and would disassemble it if it became windy. (Tr. 50, 757–59,
1033–36; ALJ 2–3) 35
As discussed in more detail later, on June 6, 2018, work on the roof was shut down by the
State of Nevada, Division of Industrial Relations Occupational Safety and Health Administration
(“OSHA”) due to safety violations. With OSHA shutting down work on the roof, on June 6,
Marsh posted notices that access to the roof was closed. On the notices Marsh asked the three 40
engineers to patrol the outside of the property for trash and to clean two adjacent fields. The
notices were posted specifically for Arellano, Servin, and Walker since they could no longer
work on the roof on what Marsh referred to as their “priority project.” (Tr. 81) Therefore,
Marsh wanted to give them options on what they could work on until Respondent “could
JD(SF)–13–20
21
reorganize and get them squared away with . . . an actual task.”25 (Tr. 80–83, 275–76, 444, 762,
792–93; GC. 8, 9)
The day OSHA shutdown the roof, Servin still had a couple hours left on his shift and
Sharron told him to pick up garbage around the building. Servin went outside the plant and 5
picked up trash by himself. Servin then worked on cleaning portable swamp coolers for about a
week, and on some electrical work outside the plant. Apex has a number of portable swamp
coolers, which are smaller units on wheels that can be rolled into different areas for cooling.
Like the rooftop swamp coolers, the portable coolers also needed refurbishing. Servin returned
to work inside the plant sometime towards the end of June 2018. Walker also worked on the 10
portable coolers after the roof was shut down, and similarly returned to work on the shop floor
around the same time as Servin. As for Arellano, he did the majority of the work on the portable
coolers and estimated that it took him a month to complete this work. According to Arellano, he
had to finish the portable coolers before moving on to anything else and he did not return to work
inside the laundry until around August 1. (Tr. 348, 577, 795–98, 1044–47, 1175, 1212)15
In order to once again work on the roof, Respondent had to complete various abatement
measures, which were completed in August 2018. Thereafter, work was restarted on the swamp
coolers. However, when work restarted on the rooftop in August, instead of assigning only
Arellano, Servin, and Walker to work on the coolers, Apex put all of the engineers into a rotation 20
to work on the roof with everyone being assigned a set of coolers to complete. (Tr. 94, 616-19)
b. Analysis
As with the keys and the radios, I find Respondent has not shown that it would have 25
assigned Arellano, Servin, and Walker to work exclusively on the roof from March 29 through
June 6 absent their union and other protected conduct. Before the three engineers were
reinstated, Apex had already established a schedule with all of the engineers rotating on the roof
to work on the coolers, but when Arellano, Servin, and Walker returned, everyone else was
pulled off the roof, and the three engineers were assigned to work on the roof alone. Respondent 30
has not credibly shown that altering the established rooftop work schedule, to place only
Arellano, Servin, and Walker on the roof full-time, was unrelated to their protected conduct.
According to Marsh, this was a priority project, and he expected “any available engineer was to
go up on the rooftop to work on it.” (Tr. 68) If that were the case, then Arellano, Servin, and
Walker should have been added to the existing rotating schedule; they were not. Instead, while 35
the other engineers were able to go back to work full-time inside the climatized laundry,
Arellano and Servin worked on the roof, in the heat, spending much of their time doing unskilled
work. And, Walker was required to work on the roof in the dark with a flashlight, while his
coworkers worked inside a fully lit facility.
40
I also find it relevant that, at the time the initial assignment was made on March 29, the
decertification petition had not been dismissed, and Respondent was hoping there would be an
impending decertification vote. By assigning Arellano, Servin, and Walker to work on the roof,
25 Testimony from Respondent’s managers as to how many swamp coolers had been completed at the time OSHA
ordered the roof closed varied widely. Marsh testified that between 20 to 25 coolers had been completed while
Sharron testified that only between 8 to 10 of the coolers had been finished. (Tr. 256, 577–78)
JD(SF)–13–20
22
by themselves and without a radio, Respondent was, for all intents and purposes, isolating them
from their coworkers. As for claims by Sharron that Respondent believed the work could be
completed faster with only the three engineers working on the roof full time, this is undercut by
the fact that they were denied keys and radios. Thus Arellano, Servin, and Walker would have to
waste time walking around the plant just to find someone with keys in order to get into the 5
electrical room and access the roof. And without a radio, they would have to climb up and down
the ladder, and then walk around the plant to find someone to open the parts room to get a part.
Also, when Arellano asked that their schedules be changed so they could work at the same time
to be more productive, Marsh dismissed the request outright. Clearly Respondent was more
concerned with keeping the three engineers up on the roof, in the heat and dark, working by 10
themselves and away from their coworkers, than they were with the timeliness of the project.
Finally, the inconsistent testimony of Marty Martin and Marsh, as to who made the decision to
assign the three engineers to work on the roof full-time, further supports a finding of pretext.
See Maywood, Inc., 251 NLRB 979, 993-994 (1980); Cf. Planned Building Services, Inc., 347
NLRB 670, 713–15 (2006).15
It is unlawful to assign more onerous duties to employees and isolate them in retaliation
for their engaging in activities protected by the Act. Wellstream Corp., 313 NLRB 698, 706
(1994). The evidence supports a finding that this is exactly what happened here. Accordingly,
by assigning Arellano, Servin, and Walker to work exclusively on the roof refurbishing swamp 20
coolers, Respondent violated Section 8(a)(3) and (4) of the Act.
D. Respondent Disciplines Arellano and Servin for their Work on the Swamp Coolers
1. April 12, 2018 disciplines to Arellano and Servin25
On April 12, 2018 Arellano and Servin were called into a meeting and given a
disciplinary document for lack of productivity. Present at the meeting were Arellano, Servin,
Marsh, Marty Martin, and Union representative Ed Martin. Marty Martin drafted the discipline
and presented it to Arellano and Servin. Respondent had never previously disciplined an 30
engineer for lack of production. (Tr. 70, 72, 391, 397–400, 773, 1041, 1049; GC. 7)
According to Martin, he discussed the production issue with Marsh, and also walked
around the roof, before deciding that the production rate on the swamp coolers was insufficient.
The written warning, which was a single document but applied to both Arellano and Servin, is 35
titled “Employee Counseling Statement.” The document reads, in part, as follows:
Since starting work 3-28-18, only two swamp coolers haver [sic] been brought
online. We have 3 full time engineers assigned to this task, and the performance
level is unacceptable. We are receiving excuses, and a lack of effort and 40
performance completing tasks.
The discipline goes on to say that the air conditioning system is critical to Respondent’s
operations, and that the engineers were expected to: (1) bring all the units on-line; (2) rebuild
two complete units per week, per engineer; and (3) work complete shifts. Finally, the document 45
states that the consequences for not doing so was “progressive discipline.” Marty Martin
JD(SF)–13–20
23
testified that during the meeting the Union did not agree on Respondent’s productivity standard
regarding work on the swamp cooler. Also, both the Union and the employees themselves
strongly disagreed with the disciplines. (Tr. 391–392; GC. 7)
According to both Servin and Arellano, during the April 12 meeting Marsh said that 5
Apex had contacted four different engineering companies and received estimates from them as to
how long it would take to complete the coolers. In reply, the Union argued that the condition of
each cooler was different, and nobody could tell how long it would take to complete each cooler.
Ed Martin then asked Marsh for the names of the companies Apex contacted, but Marsh said that
it was Gene Sharron who did the research and actually had that information. According to Marty 10
Martin, Respondent did not reach out to mechanical subcontractors for estimates until after the
April 12 meeting and did so based on the Union’s suggestion. Moreover, Marty Martin testified
that it was Marsh–and not Sharron–who had these discussions with the subcontractors. For his
part, Sharron testified that when Arellano, Servin, and Walker were assigned to refurbish the
swamp coolers, he expected them to complete the entire project in three or four days.26 He also 15
said that Respondent had started the project three weeks earlier, and had completed work
rebuilding three swamp coolers. Thus, when the three engineers were reinstated and started
working on the coolers, there were 22 swamp coolers that still needed to be rebuilt. (Tr. 390–91,
559–60, 563, 619, 774, 1042–43)
20
According to Marsh, the standard of two coolers per week, per employee, was established
based upon “past experience for the same type of work.” (Tr. 72) Marsh testified that Apex
reviewed the work that its staff and the mechanical subcontractors had done in the past, came up
with an estimate, tallied the total, and averaged it out over the 25 coolers. Marsh admitted that
Respondent’s time estimate corresponded to the amount of time Apex’s mechanical 25
subcontractors had taken in the past to complete their seasonal work, despite the fact that the
rebuilding project was much more labor intensive. But, Marsh testified Respondent had
contacted the contractors, let them know the scope of work that needed to be completed, and the
contractors responded that it could be completed in less time than was allotted to Arellano,
Servin, and Walker.27 (Tr. Tr. 72–74, 339–40)30
Also, within the first few weeks of the project Respondent sent a maintenance engineer
named Chuy to the roof to refurbish a cooler by himself. Marty Martin testified that Chuy was
sent to the roof for a specific purpose, to see how long it would take for someone working
diligently to complete one swamp cooler. According to Marty Martin, Chuy was able to 35
refurbish a cooler by himself in a day and one-half, the equivalent of 12 work hours. Sharron, on
the other hand, testified that Chuy completed refurbishing his cooler in only four hours. The
only witnesses who testified that they actually inspected the cooler completed by Chuy was
26 Sharron’s target of four days to complete 22 swamp coolers would require the engineers to finish 5.5 coolers per
day.
27 Marsh also testified that during a meeting with the Union and the three engineers, that occurred within the first
week of the project, he communicated Apex’s expectations regarding the swamp coolers and everyone agreed the
project could be completed within the time allotted. (Tr. 340) However, other than this testimony there is no other
evidence of this purported meeting, and during the April 12 meeting the Union strongly objected to the disciplines
based upon Respondent’s imposed standard. (Tr. 1043) Also, Marty Martin testified that Marsh did not get
estimates from mechanical contractors until after the April 12 meeting. I do not credit Marsh’s testimony, and find
that no such meeting, or agreement on a productivity standard, ever occurred. (Tr. 390-91)
JD(SF)–13–20
24
Servin. According to Servin, one day in April 2018 he was on the roof and talking with Chuy.
The two looked at the unit Chuy had completed and discussed all the extra work Arellano and
Servin were doing on the coolers compared to what Chuy had done. Chuy had only epoxied the
water pan. He did not replace any of the parts or pieces on the swamp cooler and did not even
scrape the water pan completely clean before applying the epoxy. As for how long it actually 5
took to complete a cooler, Arellano testified that it would take about 2 days just to completely
scrape an entire unit down to the bare metal, including the water pan. Arellano estimated that it
took all three of the engineers one week to complete two swamp coolers. (Tr. 421, 426–27, 620–
21, 775, 951–52, 955, 1000, 1129, 1140)
10
As to whether the Employee Counseling Statement issued to Arellano and Servin was
disciplinary in nature, Marty Martin testified that it was, in fact, a “disciplinary document.” (Tr.
391) Marsh, on the other hand, testified that, while they determined there was a lack of
productivity, “[d]iscipline was never brought up.” (Tr. 72)
15
Martin testified that he had also requested Walker be disciplined, but Walker worked the
graveyard shift and was not available for the April 12 meeting. After the meeting, Marty Martin
decided not to further pursue disciplining Walker. He believed Walker was not as culpable since
he was working on the ground in more of a supporting role. (Tr. 391–92)
20
2. June 15, 2018 discipline to Servin
Servin received another discipline for lack of productivity regarding the coolers on June
15, 2018. He was called into a meeting that day at the facility, given a written warning, and told
that he was being disciplined for lack of productivity. The discipline reads as follows:25
Joseph has been working on a project for 2 months longer than it should have
taken to complete. In 14 weeks, only 21 Swamp coolers have been rebuilt and
brought back on line. The required standard is 2 units per week per individual as
initially discussed. (GC. 10) 30
Marty Martin was the final decisionmaker regarding the discipline and was the person who both
drafted and signed the document. During the meeting, Servin explained that the delays with
fixing the swamp coolers were primarily caused by Apex, because they did not have the parts
and pieces needed to complete the units. At trial, Marsh testified that he did not doubt Servin’s 35
statement that there were a lack of parts at the time. However, during the meeting, Marty Martin
did not respond to Servin’s explanation.28 (Tr. 97, 99, 111. 394–95, 1047–49, 1060, 1136)
After the CBA was signed, Marty Martin testified that he purged the April 12 and the
June 15 disciplines from the employee files, in an effort to start over. That being said, neither 40
Arellano nor Servin were ever notified that the disciplines were removed from their files. And
there is no documentary evidence that this so-called purge ever occurred; I do not credit Marty
Martin’s testimony that the disciplines were purged. (Tr. 415–16, 1135)
28 A discussion also arose during the meeting about Servin’s work on a project changing various light fixtures. (Tr.
1047–60) However, it is clear from the face of the discipline that it was being issued because of Servin’s work on
the swamp coolers only. (GC. 10)
JD(SF)–13–20
25
3. Analysis
The evidence supports a finding that Respondent violated Section 8(a) (3) and (4) of the
Act by issuing written disciplines to Arellano and Servin on April 12, 2018, for their purported
lack of production regarding their work remanufacturing the swamp coolers, and for issuing 5
Servin a written discipline in June for the same reason. Respondent’s assertions, particularly
about the supposed production standards, are not credible. Instead, I find that Respondent’s use
of a production standard requiring the completion of two coolers per week, per engineer, was
fabricated as an excuse to discipline Arellano and Servin.
10
When asked how Respondent determined the production standard, Marty Martin, who
drafted the disciplines, testified that it was based upon Marsh’s experience on what he had
expected in the past. Marsh similarly testified that it was based upon past experience for the
same type of work. However, it is undisputed that this type of work, the complete rebuilding of
all the swamp coolers, had never been performed in the past. Thus, the assertion by both Martin 15
and Marsh that the production standard was based on Marsh’s past experience is not believable.
Regarding the standard, Marsh also testified that Respondent contacted mechanical
contractors, let them know the scope of the work that needed to be completed, and the standard
was based upon their responses. However, Marty Martin testified that Marsh did not contact the 20
contractors until after April 12. When asked by the Union during the April 12 meeting for the
names of the companies Respondent had purportedly contacted, Marsh was unable to give any
names–saying it was Sharron who did the research. However, Sharron testified the standard was
not two coolers, per engineer, per week. Instead, Sharron said that he expected them to complete
the entire project in three to four days. Respondent’s basis for its production standard is not 25
believable, as Respondent’s witnesses gave conflicting answers; this supports a finding of
pretext.
Also pretextual is any claim Respondent’s production standard was established by the
work performed by Chuy. Marty Martin testified that Respondent sent Chuy to the roof to see 30
how fast someone working diligently could finish a cooler, alluding that Apex based its standard
using Chuy as a comparator, and that he was able to finish one swamp cooler by himself in 12
work hours. However, Sharron testified that it took Chuy only four hours to completely
refurbish a swamp cooler. Neither testimony is worthy of belief; instead I find that both Sharron
and Marty Martin were making up numbers to correspond with whatever they believed would 35
help Respondent’s explanation of events at the time they testified. Moreover, I credit Servin’s
testimony that the only work Chuy had actually completed was epoxying the cooler’s water pan,
and even then he did not scrape the pan clean before applying the epoxy.
Instead of a lack of production, the evidence supports a finding that the production 40
numbers of Arellano, Servin, and Walker were on par with Respondent’s efforts to refurbish the
coolers that occurred before their reinstatement. The April 12 discipline states that two swamp
coolers had been completed in two weeks; one cooler per week. Sharron testified that, in the
three weeks prior to the reinstatement, the entire engineering staff had completed work on three
coolers; one cooler per week. While Sharron said he could not keep the engineers on the roof 45
full-time, Respondent had its entire engineering department, well over ten people, working on
JD(SF)–13–20
26
the coolers, including Sharron. Thus, the fact that Arellano, Servin, and Walker were able to
complete the same numbers of coolers per week as the entire engineering staff undercuts
Respondent’s claim that there was a lack of production. This is especially true considering that
Arellano, Servin, and Walker worked without keys or radios, and Walker worked at night using a
flashlight to see. 5
Accordingly, I believe the evidence supports a finding that Respondent set up Arellano,
Servin, and Walker to fail, and when they actually kept pace with the production output
compared to the original team working on the roof, Respondent simply fabricated a production
requirement, and then disciplined Arellano and Servin for not meeting the contrived standard. 10
Metalite Corp., 308 NLRB 266, 268, 273 (1992) (By detailing union activist to work in a section
of the plant with “dismal conditions” the employer “set him up to fail” and then discharged the
employee for pretextual reasons). Indeed, Sharron practically admitted that Apex was setting up
the three engineers to fail. After testifying that it only took Chuy four hours to complete one
cooler, the General Counsel asked Sharron why he did not have Chuy work on the project 15
instead of Arellano, Servin, and Walker, since Chuy seemed to be more efficient. In reply,
Sharron said that he “wanted to prove a point that these guys were not doing their job on the
roof.” (Tr. 620) Sharron’s testimony completely undermines Respondent’s original claims that
this was a priority project requiring any available engineer to work on the roof. Therefore, by
fabricating a production standard, and disciplining Arellano and Sharron for failing to meet that 20
standard on April 12, I find that Respondent violated Section 8(a)(3) and (4) of the Act.29
I find the same is true for Servin’s June 15 discipline. Respondent used its fabricated
production standard to subsequently discipline Servin, who tried to explain that Apex did not
have the parts and pieces needed to rebuild the swamp coolers. The trial evidence showed that 25
Respondent’s lack of parts substantially affected the ability of the reinstated engineers to work
on the swamp coolers, and even Marsh tacitly admitted that Respondent lacked adequate spare
parts for the coolers. Accordingly, by disciplining Servin on June 15 for failing to meet Apex’s
contrived production standards, at a time when Respondent did not have spare parts available
and was withholding keys and radios from the reinstated engineers, thereby making their jobs 30
more difficult to complete, Respondent again violated Section 8(a)(3) and (4) of the Act.
E. Respondent Issues Three Disciplines to Arellano on August 16, 2018
On August 16, 2018, Arellano was called into a meeting and given three separate 35
disciplines for events that occurred on July 31, August 10, and August 15. Two of the
disciplines were drafted by Sharron, and one was drafted by Marsh; both Marsh and Sharron
have authority to issue discipline to employees. Present during the August 16 meeting was
Marsh, Arellano, and Servin; Servin was there as Arellano’s union steward. Sharron was not at
the meeting, even though he was responsible for drafting two of the disciplines and was the 40
primary witness for the third. (Tr. 113–14, 130–33, 800, 1065; GC. 11, 12, 13)
29 That Walker was not ultimately disciplined does not affect the finding that the disciplines issued to Arellano and
Servin were unlawful. “An employer’s failure to discriminate against every union supporter does not disprove a
conclusion that it discriminated against one of them.” Handicabs, Inc., 318 NLRB 890, 897–98 (1995) enfd. 95
F.3d 681 (8th Cir. 1996).
JD(SF)–13–20
27
1. Arellano’s disciplines for his repairs on a Mosca machine and bagger motor
a. Arellano’s July 31, 2018 work on a Mosca
The first discipline presented to Arellano involved an incident that occurred on July 31, 5
2018, while he was working on a Mosca machine.30 Respondent has five Mosca machines which
are used to package linen. A pile of linen is placed on the machine which shoots a plastic strap
around the linen. The two ends of the strap are then melted together by a heating element in the
Mosca keeping the bundle secure. At some point while the roof was closed, Arellano was
assigned to retrofit Respondent’s Mosca machines, ensuring that they worked properly. (Tr. 93, 10
113, 969; RX. 46, 50)
Arellano’s written warning for the July 31 incident was drafted by Sharron, who testified
that he completed the discipline on August 7. The document states that Arellano violated a
company policy by “ordering unnecessary parts.” Sharron wrote a summary of what occurred on 15
the discipline, saying that Arellano asked him to order a wiring harness for a Mosca claiming he
had checked the machine and that it had a broken wire on the harness. Sharron further wrote that
he checked the Mosca, found no problem with the harness, and when he asked Arellano why he
wanted to order a harness, Arellano replied saying something was probably wrong with the
circuit board. The document states “no problem with board. Mosca still has a problem not found 20
yet;” after Sharron completed the document, someone inserted the word “bigger” so the phrase
read “Mosca still has a bigger problem not found yet.” (GC. 11) Somebody, at some point, also
inserted the phrase “combining w/ 8/10/18.”31 Sharron signed the document but did not date his
signature. (Tr. 111–12, 583–84, 691–92; GC. 11)
25
According to Marsh, he reviewed the facts of what occurred to ensure the discipline was
warranted, and he was the one who presented it to Arellano during the August 16 meeting.
Regarding the incident, Marsh testified that on July 31 Arellano approached him asking if Marsh
wanted to look at his work on the Mosca, but Marsh had other obligations and told Sharron to
look at the machine. Marsh said that Sharron subsequently told him Arellano was concerned 30
because there was a jumper on the heating harness. A jumper is a devise used to bypass a switch
or sensor used to regulate the machine. The Moscas use a timer on the heating element to melt
the plastic straps which bundle the linen. Sometimes production employees insert a jumper to
bypass the timer so they can work faster than what is allowed by the machine’s factory settings.
(Tr. 112–114, 119–22, 970, 1302–03) 35
Marsh testified that Sharron told him there was, in fact, a jumper on the machine in
question, and that Arellano wanted to order a new wiring harness because of a short in the
wiring. However, when Sharron tested the harness for continuity the wiring was fine. For this
reason, Sharron thought that disciplining Arellano was appropriate, and Marsh agreed. 40
According to Marsh, the presence of a jumper on a harness may or may not be a cause of
30 The transcript of Marsh’s testimony reads “August 31, 2018,” however as stated on the discipline the incident
occurred on July 31, 2018. (Tr. 119; GC. 11) The date of the incident is not disputed by Respondent, as Sharron
testified it occurred on July 31. (Tr. 680, 691)
31 There was no explanation as to why the word “bigger” was written on the document or the phrase “combining
with 8/10/19.” Sharron speculated that it was written by Marsh. (Tr. 595, 691–92)
JD(SF)–13–20
28
concern, depending upon what the jumper was bypassing. In this instance, Marsh testified he
was not concerned about the jumper even though he did not know why the jumper was on the
machine. (Tr. 120–22)
Marsh admitted that Respondent did not order a new harness for the machine, that 5
Arellano never submitted a written parts request for a new harness, and that Arellano’s concerns
about the jumper did not cost Apex any money. According to Marsh, what Arellano did wrong
was that he said a new wiring harness needed to be ordered, but he was incorrect. During his
testimony, Marsh acknowledged past instances where engineers had submitted requests for parts
or equipment which Respondent ultimately decided were not necessary and therefore not 10
ordered; these employees were not disciplined for submitting their request. (Tr. 124–25, 129)
Regarding the July 31 incident, Arellano testified that his shift was ending, and he went
to Marsh’s office and spoke with both Sharron and Marsh. Arellano told them what was
happening with the Mosca and asked whether they wanted him to work overtime to finish the 15
machine or pass it on to Servin. Marsh then asked Sharron to look at the machine. Sharron and
Arellano walked to the Mosca and Sharron inspected the machine. That day, Arellano had
removed the sealing assembly and all the gears on the Mosca, cleaned, lubed, reassembled, and
tested the machine, which was running properly. However, there was a jumper between two
terminals on the heating element. According to Arellano, it is not normal to have a jumper on a 20
machine, so he thought there was a problem. He showed the jumper to Sharron, told him that
there might be a problem with the machine because of the jumper, and asked whether he should
stay overtime to identify the problem. At some point Sharron performed a continuity test on the
wires, and told Arellano there was nothing wrong with the wiring harness. Arellano then told
him that maybe something was wrong with the circuit board, as the presence of a jumper 25
indicated there must be something wrong with the machine. Arellano testified that, other than the
presence of a jumper, there was nothing else wrong with the Mosca. Arellano denied ever asking
Sharron to order a new harness. (Tr. 798–813, 969)
Regarding the incident, Sharron testified that Arellano came up to him about 15 minutes 30
before the end of his shift on July 31 saying they needed a new wiring harness. Sharron said he
inspected the Mosca in the presence of both Marsh and Arellano, tested the wires, and found
nothing wrong with the wiring. According to Sharron, he then told Arellano “you need to stop
ordering parts when we don’t need them.” (Tr. 587) Sharron said that, at some point Arellano
told him that maybe it was the circuit board and asked if he should stay overtime and put the 35
machine back together. Sharron told Arellano to go home. According to Sharron, the machine
continued to work, but had intermittent problems; they eventually needed to change the strapping
motor a month later. (Tr. 586–89, 592–595)
Sharron admitted that no parts were ordered for the Mosca that day, and the incident did 40
not cost Apex any money. Instead, he testified that he drafted the discipline because Arellano
had come to him in the past asking to order harnesses for different machines, and he had a
problem with Arellano requesting parts that were not necessary. However, these other purported
incidents were never documented, and are not included in the July 31 discipline. Regarding the
July 31 incident, Sharron denied that it involved a Mosca with a jumper. Instead, Sharron said 45
JD(SF)–13–20
29
that the machine with a jumper was another incident on a different day. (Tr. 587–589, 591–93,
597, 687, 691)
b. Arellano’s August 10, 2018 work on a bagger motor
5
The second discipline Arellano received involved his August 10 work on a bagging
machine motor. The machine in question is used by Apex to package small towels for
distribution to customers. Clean towels are dumped into a bag, and a motor on the machine
shakes the bag so that the towels settle; the bag is then sealed and ejected. (Tr. 615, 814, 978–
79; GC. 12) 10
On August 10, Arellano was tasked with troubleshooting a shaker motor which was not
working. Arellano testified that he removed the motor, took out the brushes, blew clean the
inside of the motor, reinserted the brushes, and checked the motor to ensure it was receiving
power. However, the motor would not run. He then tested the motor using another harness, but 15
again the motor would not run. Arellano therefore concluded that the motor was defective. (Tr.
815, 978–79)
According to Arellano, he took the motor to Sharron’s office. Sharron was not there so
he left the motor in the office. He then spoke with Marsh, telling him the work he performed on 20
the motor. Arellano requested that Marsh order a new motor and said he left the original one in
Sharron’s office in the event Marsh wanted someone else to check the motor. Arellano testified
that Marsh said he would just order another motor. Marsh testified that he was present that day
but denied Arellano asked him to double-check the motor. (Tr. 134, 815–16, 980–81)
25
Sharron testified that Arellano told him to order a new motor and wiring harness for the
machine. For his part, Arellano denied ever speaking with Sharron that day.32 Sometime that
evening, another engineer was able to get the motor working and put it back on the bagger.
There is no evidence that Arellano’s actions resulted in Respondent purchasing a new motor, or
other parts, for the bagger as the existing motor was put back on the machine that same evening. 30
(Tr. 137–38, 602–05, 980; GC. 12)
Arellano testified that, after receiving his discipline, he spoke with the other engineer and
asked him how he fixed the motor. The other engineer told Arellano that he started tapping the
motor with a hammer and suddenly the motor started working. About two weeks after the motor 35
was fixed, it stopped working again. This time Arellano tapped the motor with a hammer, and it
once again started working. (Tr. 135, 606, 817–18)
Regarding the discipline itself, it was drafted by Sharron on August 13, three days after
the incident, and the document states that it is both a verbal counseling and written warning. In 40
the section asking for details of the incident Sharron wrote “ordering parts that are not needed
not checking to see what’s wrong with machine bad diagnosis combined w/ 7/31/18 Mosca.”
32 I do not credit Sharron’s testimony that Arellano wanted to order a new harness. Neither Marsh nor Arellano
testified that Arellano requested a new harness for the bagger, or that Arellano spoke to Sharron about it. Instead, it
appears that Sharron either confused his testimony about a new harness with the incident involving the Mosca or he
was trying to bolster Respondent’s reason for the discipline.
JD(SF)–13–20
30
(GC. 12) At some point after Sharron drafted the discipline, Marsh wrote in this section “Motor
found with brush stuck–loaded w/carbon–motor still running.” (GC. 12) It appears that Marsh
also wrote that Arellano needed to work on his corrective diagnosis. Sharron signed, but did not
date, the document. (Tr. 137–38; 600–03; GC. 12)
5
When he drafted the discipline, Sharron did not know what work Arellano had performed
to try and fix the motor, or what the other engineer did to get the motor running again. He
concluded that Arellano made a bad diagnosis by the fact Arellano said the motor was not
working and another engineer was able to get the motor to work. That being said, Sharron also
testified that there have been instances in the past where an engineer has been assigned a task, 10
tries to fix a machine but is unable to do so, and someone else goes out and fixes the machine. In
these instances, Sharron said that he would not discipline an engineer for trying to fix a machine
but not succeeding. He would only issue a discipline if the engineer “tried to cover it up.” (Tr.
604, 606)
15
c. August 16 meeting regarding the Mosca and the bagger motor
Although Marsh and Arellano both testified that Sharron was not present at the August 16
disciplinary meeting, Sharron said that he sat in the room when Marsh presented Arellano with
the Mosca discipline. Regarding the Mosca, Arellano testified that during the meeting he 20
explained to everyone what occurred, but Marsh said that Arellano had ordered unnecessary
parts. Arellano denied ordering any parts and asked to see the paperwork showing he had
submitted an order. Instead, Marsh read from the discipline and said there was still a problem
with the machine that had not been discovered. Arellano testified that, other than the jumper,
there was no other problem with the Mosca, which was still working. Arellano asked Marsh to 25
identify which specific Mosca the discipline was related to, but Marsh said that he did not know
because Sharron had drafted the document. Arellano asked where Sharron was, and Marsh said
that he was on vacation. According to Arellano, the Mosca continued to operate, with the
jumper, until the day he was terminated. (Tr. 114, 131, 583–84, 798–801, 811–14, 1215)
30
Regarding the bagger motor, during the meeting Arellano asked Marsh to explain what he
could have done differently to determine what was wrong with the motor. As per Arellano,
Marsh replied saying he did not know. Marsh testified that he replied to Arellano’s inquiry by
questioning why the other engineer was successful when Arellano was not and saying that
Arellano needed to improve his troubleshooting skills along with being a little more concise. 35
According to Arellano, Marsh told him that he was being disciplined because the other engineer
was able to get the motor running, he ordered parts that were unnecessary, and he made a bad
diagnosis. Marsh testified that both the July 31 Mosca discipline and the August 10 bagger
motor discipline were “wrapped together as a verbal counseling,” and that he issued the
disciplines instead of Sharron because he was available and Sharron was not. (Tr. 130, 133, 816, 40
1216)
d. Analysis of the Mosca and bagger motor disciplines
The evidence supports a finding that Apex violated Section 8(a)(3) and (4) of the Act by 45
disciplining Arellano for his work on the Mosca machine and the bagger motor as Respondent
JD(SF)–13–20
31
has not met its burden of proof to show that it would have disciplined Arellano absent his union
and other protected activities. Regarding Arellano’s work on the Mosca, the fact the testimonies
of Sharron and Marsh differed on key details regarding the incident supports a finding that the
discipline was unlawfully motivated. For example, Marsh testified that Sharron inspected the
machine by himself as Marsh had other obligations. Sharron on the other hand testified that he 5
examined the machine in the presence of Marsh and Arellano. In fact, Marsh and Sharron could
not even agree on what machine Arellano was working on that resulted in his discipline. Marsh
was explicit that the incident involved a machine that had a jumper on it, which comported with
Arellano’s testimony. However, according to Sharron, the discipline involved Arellano’s work
on a different machine, and the incident involving a Mosca with a jumper was another incident 10
that occurred on a different day. Cf. Southern Pride Catfish, 331 NLRB 618, 621 (2000) (where
“Respondent’s witnesses could not even agree as to the alleged reason for the discharge, it is
clear those reasons were pretextual.”).
I also find the fact that Arellano never ordered any parts further shows that Respondent’s 15
reason for the discharge was contrived. The written warning for the Mosca repair states that the
policy Arellano violated was “ordering unnecessary parts.” (GC. 11) However, it is undisputed
that neither Arellano, nor Respondent, ever ordered any parts for the machine. Even if I were to
credit the testimonies of Marsh and Sharron as to what occurred, at most Arellano was just
giving his opinion as to what the machine needed–a new wiring harness.33 Also, the fact that 20
Sharron, at trial, tried to add additional reasons for the discipline, involving other undocumented
requests from Arellano to order parts, further supports a finding of unlawful motive. These other
purported incidents are not mentioned in Arellano’s written warning, nor were they documented
elsewhere.34 Lucky Cab. Co., 360 NLRB 271, 274 (2014) (citing Inter-Disciplinary Advantage,
Inc., 349 NLRB 480, 509 (2007) (raising additional allegations of misconduct for the first time at 25
hearing supports a finding of pretext).
Finally, the disparate treatment accorded to Arellano also shows unlawful motive. Marsh
admitted that there have been instances in the past where an engineer has requested a part or
piece of equipment be ordered but Respondent decided the request was unwarranted. These 30
employees were not disciplined. Arellano, on the other hand was given a written warning.
Shamrock Foods Co., 366 NLRB No. 107 slip op. at 1, fn. 1 (2018), enfd. 779 Fed.Appx. 752
(D.C. Cir. 2019) (per curium) (disparate treatment where employer’s witnesses testified other
employees made similar mistakes but were not disciplined).
35
The same analysis holds true for the bagger motor discipline. Arellano was disciplined
for being unable to fix the motor/making a bad diagnosis and for ordering parts that were not
needed. However, Sharron testified that other engineers have been unable to fix machines but
were not disciplined, because he would not discipline someone for trying, but failing. Instead he
would only issue a discipline if someone tried to cover something up. Here, there is no claim 40
33 Along with assessing their demeanor, because of their inconsistent and contradictory testimony as to what
happened, I credit Arellano’s testimony over that of Marsh and Sharron where their testimonies contradicted.
34 The only other documented incident involving claims that Arellano tried to order unnecessary parts involved the
bagger motor. However, Sharron testified he drafted the Mosca discipline on August 7. (Tr. 691–92) Thus the
bagger motor incident, which happened on August 10, had not even occurred when Sharron drafted the Mosca
discipline. (GC. 12)
JD(SF)–13–20
32
that Arellano tried to cover anything up. Therefore, the disparate treatment between the other
engineers who unsuccessfully tried to complete a repair but were not disciplined, and Arellano is
evidence of unlawful motive. Shamrock Foods Co., 366 NLRB No. 107 slip op. at 1, fn. 1. As
for claims that Arellano requested Respondent order parts, no parts were ever ordered. And,
other employees who made similar requests, which went unfulfilled, were not disciplined. 5
Accordingly, I find that Respondent violated Section 8(a)(3) and (4) of the Act by issuing
Arellano a written warning dated August 7, 2018, for his work on a Mosca machine and for
issuing him a written warning dated August 13, 2018, for his work on a bagger motor.
2. August 15, 2018 discipline regarding the Weightanka10
a. OSHA stops work on the roof
On June 6, 2018 OSHA conducted a surprise inspection at Respondent’s facility. OSHA
closed down access to the roof and all work was halted. Servin was working on June 6, and he 15
met with the OSHA investigator that day. Ed Martin from the Union had contacted OSHA as the
Union and some of the engineers were concerned about the lack of fall protection for employees
working on the roof. At the time, Respondent did not know who contacted OSHA, but assumed
Arellano, Servin, or Walker had done so. (Tr. 76–77, 444, 547–48, 762, 792, 1043, 1047; GC. 8)
20
OSHA issued Respondent a citation and fine for several violations. Before OSHA would
reopen the roof, Respondent had to undertake various abatement measures. These included
installing a guardrail on the roof wall adjacent to the hatch opening to ensure the wall was at
least 42 inches high. At the time, the height of the roof wall ranged from between 10 to 24
inches. Apex also needed to ensure that employees working on the roof were protected from 25
falling through the skylights. The roof contained multiple skylights, most of which were located
only a few feet away from the swamp coolers. The skylights had plastic covers and there was
nothing to protect workers from falling through them in the event of an accident. The lack of fall
protection was specifically noted in the OSHA citation. Therefore, as part of their abatement
measures, Respondent purchased a portable anchoring system called “Weightanka” for use on 30
the roof. (Tr. 77–79, 146–47, 332, 826, 848; GC. 8, 14, 15, 49; R. 13, R. 51, R. 51 p. 4, R. 51
p.10)
The abatement measures were completed by August 2018, and the company was ready to
restart work on the swamp cooler project. Marsh self-designated the area where the new 35
guardrails were installed as a “safe zone,” as he believed the guardrails would keep someone
from falling off the roof’s edge. That being said, there is no evidence that Marsh informed any
of the employees about a “safe zone,” and Arellano testified that, before returning to the roof in
mid-August, nobody from the company had ever informed him that there was such an area on the
roof. (Tr. 94, 125, 283, 826, 1218; R. 13, R. 51 p. 10) 40
b. Training on the Weightanka
On August 1, 2018, Marsh led a training for Respondent’s engineers on fall protection as
part of the OSHA required remediation in order to reopen the roof for work. As part of the 45
training he distributed a booklet containing the operating instructions for the four Weightanka
JD(SF)–13–20
33
units Respondent had purchased. (GC. 15) (Tr. 143–145, 148, 284–85, 825, 828–29; GC. 15,
GC. 49 p. 5; R. 7 p.3)
Each Weightanka consists of four rubber-coated base weights attached by cross arms in
an “X” pattern, with a stabilizing arm connecting the cross arms at the bottom of the “X” and an 5
anchoring point in the middle. Once assembled, the unit takes up between 16-20 square feet and
weights around 200 pounds. Additional 50-pound weight plates are stacked on top of the rubber-
coated bases to provide users with a sufficient anchoring base. Each unit comes with a total of
12 weight plates, including the four rubberized base plates. Users are supposed to wear a harness
and fasten themselves onto the Weightanka’s anchor point using a lanyard and rope. (Tr. 286–10
87, 324–25, 820–21, 836, 960–61; GC. 14, 15, R. 51 p. 4)
Arellano attended one of the training sessions on August 1. During the training, Marsh
discussed the Weightanka, its components, and went through the instructional booklet. He also
showed the workers how to wear the harness, discussed the use of the harness with the attendant 15
lanyards and ropes, and told employees they needed to be anchored to the Weightanka when they
worked on the roof. During the training employees were given an opportunity to ask questions;
Arellano did not ask any questions. Sharron also attended Weightanka training that day but
attended the second training session and not the one attended by Arellano. (Tr. 144–45, 284–85,
614–15, 828–29, 853, 958–59, 961; R. 7 p. 3)20
Even though Marsh led the training, he had never assembled a Weightanka or even used
one. And, during the training attended by Arellano, nobody actually assembled a Weightanka
unit or physically showed the employees how to do so. Instead, Marsh showed the engineers a
picture of an assembled unit from the manual.35 During the meeting Marsh did not provide any 25
instructions to the engineers as to who was assigned to assemble the Weightankas on the roof,
the order in which they were to be assembled, or the locations on the roof the units were to be
placed. (Tr. 145, 825, 829–30, 961)
At some point after the meeting, and it is unclear from the record exactly when, Marsh 30
took the components of the four Weightanka units and placed them on the roof; Marsh went up
to the roof without wearing any safety equipment. He did not assemble any of the units,
testifying that it was not his job to do that type of work. Instead, he put the components for three
Weightanka units against the west wall containing the newly erected guardrail. The parts for the
fourth unit he placed near the middle of the roof. When asked why he was on the roof without 35
safety equipment, Marsh testified that he was standing in the area that he had self-designated as
safe zone, where the guardrail would prevent him from falling off the edge. However, pictures
introduced into evidence show that the components of one of the Weightanka units by the west
wall were placed in an unprotected area, where the roof parapet wall was only 24 inches high.
And, Marsh did not explain why he placed a Weightanka in the middle of the roof without being 40
anchored or otherwise wearing safety gear given the fact that there were skylights all over the
roof that he would have to walk past. (Tr. 145–46, Tr. 154, 159, 826; GC. 14, 49)
35 The manual itself does not include specific instructions on how to assemble the unit but does have pictures of an
assembled Weightanka with the names and functions of its various components along with some diagrams for
establishing fall clearance distances. (GC. 15; Tr. 825)
JD(SF)–13–20
34
c. Arellano works on the roof
On August 15, Arellano was assigned to work on the roof rebuilding swamp coolers; this
was the first time he had returned to the roof since it was closed by OSHA. His shift started at
4:00 a.m. When Arellano got to the roof, he found the Weightanka units laid out, unassembled, 5
where they had been placed by Marsh. According to Marsh, between the time the roof was shut
down by OSHA and August 15, he was the only person that had accessed roof in order to install
the guardrails and bring up the Weightankas. Therefore, Arellano’s 4:00 a.m. shift was the first
time an engineer would be on the roof using the fall protection system. (Tr. 41, 145–46, 611–12,
825–26, 841, 961; GC. 14) 10
Arellano testified that once he was on the roof, he started moving components of the
Weightanka unit that Marsh had placed in the middle of the roof to an area near the cooler he
was going to work on. It did not occur to Arellano to first build a Weightanka unit near the roof
hatch; instead he built a unit near his work area. At some point, while he was arranging the 15
pieces of the Weightanka, Arellano disconnected the power from the swamp cooler he was going
to work on and removed the panels and pads, placing them on the roof next to the cooler.
Arellano thought it would be more efficient to remove the pads and allow them to drain, as they
contained large amounts of water, while he was building the Weightanka. It is undisputed that
during this time Arellano was walking around on the roof unsecured. (Tr. 154, 159, 831, 835–20
39, 852, 854, 963)
At about 5:40 a.m. Sharron took two pictures of Arellano on the roof. According to
Sharron, he watched Arellano for less the five minutes before he took the pictures. The
photographs show Arellano standing next to a swamp cooler, between four to seven feet away 25
from a skylight. The panels and pads of the swamp cooler had been removed, were lying on the
roof, and water had accumulated around the pads and was draining in the direction of the roof’s
slope. In the pictures Arellano is wearing a harness around his shoulders, but there is no lanyard
or rope attached to the harness and he is not secured to a Weightanka or anything else. There is a
hose lying on the roof, which seems to encircle the area where Arellano is working, but neither 30
end of the hose is visible. Finally, the pictures show a work light set up on a tripod illuminating
the swamp cooler. Sharron also took a photograph of the components for the three Weightanka
units that Marsh had spread out against the western wall of the roof. (Tr. 338, 608, 611, 830–31,
833, 855; GC. 14)
35
Sharron testified that he arrived to work early on August 15 and went to the roof
specifically to see if Arellano was going to use the safety equipment. He knew that Arellano
would be the first person on the roof that day and would be tasked with assembling a
Weightanka. Sharron claimed that the previous day two employees told him Arellano said he
was not going to wear his safety equipment; Arellano denied making any such statement. (Tr. 40
608–09, 611–12, 615, 858–59)
Sharron was not wearing any safety gear when he was on the roof and was not anchored
to a Weightanka or anything else when he took the pictures. According to both Sharron and
Marsh, Sharron did not need to wear safety gear, or be anchored while on the roof, because he 45
was standing in the “safe zone” when he took the pictures. That being said, the photographs
JD(SF)–13–20
35
clearly show otherwise. Sharron was not near the parapet wall with the extended guardrail or
near the hatch when he took the photographs of Arellano. Instead, he was standing next to a
swamp cooler, near a skylight.36 Indeed, from the photographs it appears that, when he took the
pictures, Sharron was standing about as close to a skylight as was Arellano.37 The evidence
shows that Sharron was standing next to swamp cooler “A-8” when he took the pictures and 5
Arellano was standing next to swamp cooler “A-7.” (Tr. 125, 155, 158, 336–38, 681–83, 695,
831–32; GC. 14; R. 13, R. 51 p. 10)
After Sharron took the pictures, he left the roof to tell Marsh. However, Marsh did not
start work until 8:00 a.m. At no time that day did Sharron speak to Arellano about the fact he 10
was not anchored to a Weightanka or was otherwise working unsafely. When asked why he did
not do so, Sharron testified that it was because Arellano had taken the fall protection training
course the previous day, should have known what to do, and had “defied what he was told to
do.” (Tr. 621–22) Moreover, according to Sharron, in his opinion the roof was safe, and
Arellano was not working in an unsafe manner, notwithstanding the OSHA citation. Sharron 15
was adamant that the roof was safe, saying that before the OSHA citation they had worked on the
roof for seven years without any problems or complaints, and that if he thought Arellano was in
any real danger, he would have never sent him onto the roof to begin with. (Tr. 152, 613, 621–
22, 690, 694)
20
Neither a completed Weightanka unit, nor any of its components, are visible in Sharron’s
photographs of Arellano. According to Arellano, he was assembling the Weightanka in an area
just outside of the frame of the photograph, and Sharron’s pictures must have occurred while he
was moving components to assemble the Weightanka. Arellano testified that he completed
building a Weightanka unit on August 15, and he took a picture of the unit he built; the picture 25
was introduced into evidence. Arellano estimated that it took him about an hour and a half to
build the Weightanka, because he had never assembled one before, and testified that it was only
after building the unit that he continued working on the swamp cooler. (Tr. 836–39, 839–44,
852, 857; GC. 14; GC. 47)
30
According to Sharron, Arellano did not assemble a Weightanka unit on August 15.
Sharron said he knew this because he went to the roof about midday, after Arellano had stopped
working, and saw the Weightanka components “sitting in the same spots.” (Tr. 612) However,
Sharron testified that Respondent had only purchased two Weightanka units, while four units
were actually purchased, and there was no testimony as to which Weightanka units Sharron 35
claimed to have seen that day. Moreover, there is no evidence that Sharron knew Marsh had put
the components for one of the Weightanka units in the middle of the roof. Instead, Sharron
believed that all the units needed to be disassembled every day and placed against the wall in the
area designated as a “safe zone.” As for Marsh, he confirmed that Arellano had built, and used, a
Weightanka unit on August 16, but could not recall if he went to the roof to see if a Weightanka 40
was assembled on August 15. Instead, Marsh testified that he was not 100 percent sure how the
facts played out on August 15, or whether Arellano eventually did, or did not, assemble a
36 Using the height of the swamp cooler as a guide, it appears that Sharron was standing about six feet away from the
skylight when he took the picture. (Tr. 242)
37 Arellano testified that, in the picture, he was standing about 4–5 feet away from the skylight. (Tr. 833) Looking
at the photo, Marsh estimated that Arellano was standing within 6 or 7 feet of the skylight. (Tr. 338)
JD(SF)–13–20
36
Weightanka unit that day. According to Arellano, Marsh saw him anchored to the Weightanka
on August 15, and Marsh admitted this to him during their disciplinary meeting. (Tr. 161–62,
612–16, 858)
After Sharron came down from the roof on August 15, he waited for Marsh to arrive and 5
then gave him the photographs. Marsh reviewed the pictures, listened to Sharron’s report of the
incident, and decided to discipline Arellano. According to Marsh, the discipline was warranted
because the pictures showed that, even though Arellano was wearing his harness, he was not
anchored to a Weightanka. And, by not properly securing himself to the Weightanka, Arellano
could have been injured or killed. Specifically, the concern was that Arellano was standing in an 10
unsafe area near a skylight. (Tr. 140, 142, 148, 152, 338, 690)
Marsh testified that the area around the skylights is dangerous, and this was an issue
highlighted by OSHA. The part of the roof where Arellano was working has five rows of
skylights running from east to west across the roof. Marsh testified that any area within tripping 15
distance of a skylight was unsafe. Marsh estimated that the danger zone around the skylights
was an area of about 6 feet in any direction. He further testified that OSHA would require
workers avoid a distance of even greater than 6 feet. In his review of Sharron’s photographs,
Marsh estimated that Arellano was standing, unanchored, within 6 or 7 feet of a skylight which
put him in the danger zone. (Tr. 333–35, 338; R. 13, R. 51 p. 10) 20
According to Marsh, what the engineers were supposed to do while working on the roof
was build a Weightanka unit in the “safe zone,” anchor themselves to that unit, and then build
another unit near the cooler they were working on. Engineers could then leapfrog from one
Weightanka to another, by transferring their anchor lanyard as they go. According to Marsh, as 25
of the date of the hearing, there was a Weightanka built and available for use near the safe zone.
But as of August 15, nobody had built a unit in the safe zone yet, even though the components
were available. (Tr. 287–88, 336)
d. August 16, 2018 disciplinary meeting30
At the August 16 disciplinary meeting, Marsh presented Arellano with the discipline for
not being properly anchored to the Weightanka while he was working on the roof, he also
showed him the photographs taken by Sharron. The disciplinary document was drafted by
Marsh and states that Arellano was seen on the roof in safety gear, working on swap cooler A-7, 35
but was not anchored as required. Thus, Arellano was in violation of Respondent’s safety
program and OSHA requirements. The discipline also notes that Arellano attended the safety
training on August 1 and did not ask any questions. The discipline was marked as a written
warning and cautioned that any further similar incidents could result in further discipline, up to
and including termination. Arellano signed the document but wrote that he was signing it under 40
protest. In the area on the document for employee comments, Arellano wrote that he was the
first person to build the Weightanka, and that Marsh said that he and “Marty” were on the roof
without fall protection while placing the components of the Weightanka on the roof. (Tr. 139–
40, 142, Tr. 613, 819–20; GC. 13; R. 7)
45
JD(SF)–13–20
37
During the disciplinary meeting, Arellano asked Marsh if anyone had been on the roof
after it had been closed by OSHA, noting that the guard railing had been installed, the
Weightanka pieces were on the roof, and the roof looked differently than it did when it was
closed in June. Both Servin and Arellano testified that Marsh told them he was the one who put
the Weightanka components on the roof, and that he had a special permit to do so without fall 5
protection. Servin asked who took the pictures of Arellano, and Marsh said that Sharron did so
but that he was standing on the roof-hatch ladder in the “safe zone” when he took the
photographs. (Tr. 847–48, 851, 1065)
According to Arellano, during the meeting he and Servin asked when Apex had started 10
disciplining people for working on the roof, and Marsh looked up an email on his computer and
told them as of July 30. Marsh testified that prior to the CBA no written disciplines had ever
been issued for a safety violation. According to Marsh, the only incident before the CBA that
came close to a discipline regarding a safety violation involved two employees who were
hoisting each other up into the air with a forklift. Those employees were stopped immediately 15
and spoken to about the proper use of a forklift. However, no written discipline was
administered. (Tr. 163, 859–60)
Arellano testified that, during the disciplinary meeting, he tried explaining to Marsh that
he was in the process of building a Weightanka unit when the pictures were taken, and that he 20
finished assembling the unit shortly thereafter. However, Marsh responded by saying that
Arellano had been on the roof without fall protection. Marsh believed that Arellano was actually
working on the evaporative cooler, as opposed to building a Weightanka. However, even if
Arellano was in the process of building the unit, Marsh testified that it did not matter because
Arellano was not anchored while working on the roof as per the training directives. (Tr. 148–25
151) (Tr. 159–60) (Tr. 966–67)
As for Sharron’s failure to stop Arellano or say anything to him about working on the
roof unanchored, Marsh testified that he spoke with Sharron after the incident. Marsh said he
told Sharron that, whenever he sees a safety violation, he is supposed to stop the conduct or add 30
corrective measures. According to Marsh, Sharron seemed more interested in documenting what
occurred so Arellano could be disciplined as opposed to Arellano’s safety. (Tr. 152–53)
e. Analysis
35
It is undisputed that Arellano was working on the roof early in his shift on August 15
without being anchored to a Weightanka. Because of this, Respondent could have validly
disciplined Arellano. However, “an employer cannot simply present a legitimate reason for its
action but must persuade by a preponderance of the evidence that the same action would have
taken place even in the absence of the protected activity.” Consolidated Bus Transit, 350 NLRB 40
1066 (2007), enfd. 577 F.3d 467 (2d Cir. 2009) (internal quotations omitted). “In other words, a
respondent must show that it would have taken the challenged adverse action in the absence of
protected activity, not just that it could have done so.” Rhino Northwest, LLC, 369 NLRB No.
25, slip op. at 3 (2020) (italics in original). Respondent has not done so here.
45
JD(SF)–13–20
38
According to Marsh, Arellano was disciplined for being on the roof without being
secured, which was against the training directives. However, so was Sharron. When he took the
pictures of Arellano, Sharron was similarly on the roof without being secured, which would have
also been against training directives. Sharron and Marsh’s claim that Sharron was standing in
some self-declared safety zone, or on the roof-hatch ladder, is belied by Sharron’s very own 5
pictures. The pictures clearly show that Sharron was standing right next to swamp cooler A-8
and about six feet from a skylight, near to, or within, the danger zone identified by Marsh, and
certainly within the danger zone that Marsh testified OSHA would require workers to avoid.
Respondent’s claims that Sharron was standing in some sort of safe area is not only unbelievable,
but clearly contrived to somehow excuse the fact that Arellano was disciplined for being on the 10
roof unsecured while Sharron was not.
It is also undisputed that Marsh was on the roof unsecured when he transported the
Weightanka units to the roof. I do not credit Marsh’s testimony that he had some sort of special
permit to be on the roof without fall protection, as it was self-serving, and no such permit was 15
introduced into evidence. Moreover, it is clear that Marsh was outside his own self-declared safe
zone while he was on the roof. Sharron’s pictures show that the components of at least one
Weightanka unit was placed by Marsh in an area next to the parapet wall where there is no
guardrail. (GC. 14, p.2) And, Marsh placed one of the units near the middle of the roof, which
would have required him to walk past multiple skylights. By the requirements that Marsh 20
applied to Arellano, if he or Sharron were to be on the roof safely, they should have built a
Weightanka near the hatch, tied off, and then proceeded to carry on with their duties. While that
would clearly have been the best practice to ensure safe access to the roof, neither Sharron nor
Marsh did so. But the moment that Arellano was on the roof unsecured he was disciplined. The
fact that Marsh and Sharron took such a brazen approach to being on the roof unsecured, but 25
disciplined Arellano while he was in the process of building a Weightanka, albeit in his work
area instead of near the hatch, supports a finding of unlawful motive.38
I further find the fact that no training was provided to the engineers as to where to build a
Weightanka when they accessed the roof, and how they were supposed to move across the roof, 30
is evidence that Respondent was hoping to catch Arellano in some type of situation where he
could be disciplined. Marsh testified that a Weightanka should have been built near the hatch
opening and the engineers were supposed to tie-off and leapfrog across the roof, building more
Weightankas as needed. However, at the training no such directives were given to the engineers.
Marsh did not provide any instructions as to where the Weightankas were to be assembled, the 35
order in which they were to be built, or the locations on the roof where they were to be placed.
Moreover, nobody even built a Weightanka unit during the training. It appears from the
evidence that August 15 was the first time the engineers were allowed to be back on the roof, and
Sharron knew Arellano would be the first person working on the roof that day and tasked with
38 I credit Arellano’s testimony that he eventually built a Weightanka near the cooler he was working on and that he
took a picture of the unit on August 15. (Tr. 839–44, 857; GC. 47) I also believe that Marsh saw Arellano attached
to a Weightanka on August 15 and admitted this during the disciplinary meeting. (Tr. 858) Marsh’s testimony that
he was “not 100 percent sure how the facts played out” on August 15, and that he did not know if he went to the roof
that day, were equivocating statements in order to avoid admitting that Arellano eventually built, and was secured
to, a Weightanka that day. (Tr. 161–62)
JD(SF)–13–20
39
building a Weightanka.39 Without ever having built a Weightanka before, and only rudimentary
training, it is reasonable that it would take Arellano time to piece together a unit. And when he
started building a unit near his work area, instead of near the hatch, Respondent used this to
discipline him claiming a safety violation. Cf. Hollywood Brands, Inc., 169 NLRB 691, 691,
696 (1968) (employer’s failure to provide adequate instructions or the normal training period 5
because of employee’s union adherence evidence of pretext).
Finally, the disparate treatment afforded to Arellano, compared to other employees who
engaged in safety violations, also supports a finding of unlawful motive. Shamrock Foods Co.,
366 NLRB No. 107 slip op. at 1, fn. 1 (2018). Marsh’s testified that, before the CBA went into 10
effect two employees were caught hoisting themselves up into the air with a forklift. The
practice was stopped immediately, the employees were spoken to about the proper use of the
forklift, but no written discipline was administered. Here, neither Sharron nor Marsh stopped
Arellano from working on the roof without being secured, or spoke to him about it, on August
15. Instead he was given a written discipline. Marsh even admitted that Sharron seemed more 15
interested in documenting what occurred so Arellano could be disciplined than with Arellano’s
safety.
Based on the foregoing, I find that Respondent has not met its Wright Line burden of
showing by a preponderance of the evidence that it would have disciplined Arellano for being on 20
the roof unsecured while he was building a Weightanka unit on August 15 if he had not engaged
in protected activity. Accordingly, his August 15 discipline was unlawful under Section 8(a)(3)
and (4) of the Act.
F. Servin’s September 1, 2018 Discipline for Inadequate Workmanship25
On September 1, 2108, Sharron drafted a written warning and gave it to Servin during a
meeting in Sharron’s office. The discipline was related to Servin’s work the day before on a
machine called an “iron folder,” which was also sometimes also referred to as the “stacker” or
“folder/stacker.” The written warning states that Servin showed inadequate workmanship by not 30
tighten the bolts on the machine’s slide transfer table (referred to as the “transfer table.”)40
Servin signed the document under protest. (Tr. 295, 1072–73) (GC. 16; R. 16)
1. The folder/stacker
35
The folder/stacker is a machine that folds freshly ironed sheets into a packageable size,
stacks them, and then discharges the stack onto the main conveyor line. Respondent has six
machines in this configuration each having the capacity of folding between 700 to 800 sheets an
hour. The machines are made by a company called Kannegiesser, which sends a technician to
the plant quarterly to check on the equipment. (Tr. 166–67, 295–96, 635, 1266–67)40
39 I do not credit Sharron’s hearsay testimony that two engineers came up to him the previous day saying that
Arellano was not going to wear his safety equipment. During the hearing Sharron was prone to framing his
testimony to support whatever narrative he was trying to advance, like his claim that he was standing in the “safe
zone” when he was on the roof, even though his photographs clearly show he was standing right next to a swamp
cooler and few feet away from a skylight. (Tr. 695)
40 At various times during the hearing, the transfer table was also referred to as the belt guide, belt support table, or
belt support. (Tr. 167, 168, 174, 298–303, 305, 698, 1242–44, 1267; R. 62)
JD(SF)–13–20
40
To move the folded sheets out of the machine, the folder/stacker has a series of belts that
rest on the transfer table. The transfer table is basically a long metal plate, about 3 feet long and
8 inches wide, which supports the sheets as they are discharged from the machine. Each side of
the transfer table is attached to machine’s railings/guides via bolts. There are three holes on each 5
side of the transfer table which are fitted onto bolts and then secured using nuts. (Tr. 297–99,
1242–43, 1246, 1271; R. 15, R. 16, R. 42, R. 51, R. 52)
The top of the transfer table, which supports the belts as they move, is flat. The
underside contains a perpendicular metal support frame which runs down the middle of the10
transfer table. The support frame is used to attach the transfer table to a pneumatic rod or piston
which moves the transfer table back and forth ejecting the folded sheets.41 The pneumatic rod is
attached to the metal support frame by a bearing known as a “heim joint.” The bottom of the
heim joint contains a nut which attaches to the pneumatic rod which also has a nut; it appears
that using these two nuts the heim joint is fastened to the pneumatic rod. The top of the heim 15
joint is rounded and attaches to the support frame via a bolt that runs through the support frame
and the heim joint. A nyloc locknut is used to secure the heim joint and prevents it from backing
off the bolt due to the machine’s vibrations. (Tr. 30, 167–68, 299–300, 326, 707, 862, 1251–52).
(R. 15, R. 41(c), R. 42–45, R. 51, R. 56)
20
The part of the heim joint that attaches to the transfer table support frame contains a
smooth bored bushing, which looks like a chrome ball bearing with a hole drilled through the
middle and can rotate within the heim. The bolt attaching the heim joint goes through one side
of the support frame, through the heim joint bushing, and is attached by the nyloc locknut on the
other side. The heim joint wears out over time and periodically needs to be replaced. (Tr. 169, 25
985, 1070–71, 1075, 1081; R. 15, 43–45, 51, 56)
Respondent’s folder/stacker machines operate 24 hours per day and require daily
adjustments to work properly. Belts break, components wear out, and the accumulation of lint,
all cause issues which require attention by the engineers. Respondent will generally run the 30
machines until they fail completely, with engineers clearing jams or making small corrections to
keep production running until the machine finally stops working. At that point Respondent tries
to determine the actual issue causing the malfunction. (Tr. 166–67, 1269, 1283–84)
2. Repairs on folder/stacker #235
On August 30, 2018, folder/stacker #2 stopped working. The transfer table had come off
its railing and was jammed inside the machine. Arellano was called to work on the machine; he
was assisted by Servin and utility engineer Kevin McCann. The engineers took the machine
apart and replaced multiple components including the transfer table. However, before they had 40
completed their repairs and reassembled the machine, Arellano’s shift ended, and he left.
Therefore, Servin completed the work on folder/stacker #2 and then returned the machine into
service. (Tr. 166, 174, 622–24, 862, 982–83, 1067–68, 1072; R. 16, R. 34 p.2)
41 The pneumatic rod/piston was also referred to at times as the “ram.” (Tr. 631–32, 996, 1243, 1304, 1309; R. 41)
JD(SF)–13–20
41
According to both Servin and Arellano, along with the various problems on the machine,
the heim joint’s bushing was worn. The bolt hole that goes through the bushing had worn away,
becoming larger than the bolt and resulting in the bolt moving/shaking within the bushing
whenever the transfer table moved, which caused a rattling noise. (Tr. 863–64, 1068, 1070–72,
Tr. 1137–38) 5
The bushing alone cannot be replaced, instead a new heim joint needed to be installed.
According to Arellano, because work on the folder/stacker was still ongoing when he left for the
day, he did not do anything to address the issue of the worn heim joint. Servin testified that he
spoke with Marsh on August 30, telling him that they needed to order a new heim joint. 10
According to Servin, Marsh said that he was going to either try to find a new heim joint in town
or order it from the manufacturer so they could receive it as soon as possible. Without a new
heim joint to replace the worn one, Servin testified that he put the old heim joint back on the
machine and tightened it in order to put the machine back into service to get the production line
running again. According to Servin, after he finished, the machine was working, in that it was 15
being used for production, but because of the worn heim joint, it was not functioning properly.
(Tr. 864–65, 982–83, 986–87, 1072, 1138-39, 1142)
Sharron testified that at about 4:00 p.m. on August 30, Servin told him that the machine
was done and going back online. At about 5:30 p.m. Sharron said that the machine started 20
“clanging and banging” so he turned it off and climbed underneath to fix the problem.
According Sharron he fixed the issue by tightening the nuts and bolts that connected: (1) the
heim joint to the pneumatic rod; (2) the heim joint to the support frame; and (3) the transfer table
to the guides/railings. According to Sharron he also adjusted a sensor which was in the wrong
position. Sharron testified that, at the time, the bolt hole in the support frame was beginning to 25
wear out, but he did not see any damage to the bolt holes connecting the transfer table to the
guide/railings. Sharron said that, after he tightened the loose nuts and bolts, the machine worked
fine and it was returned to production. (Tr. 624–25, 630–32, 700, 707–08, 725–26, 1313)
Before fixing the machine, using his phone Sharron took photographs and a video to 30
document the matter for disciplinary purposes. The photographs include pictures of the sensor,
the heim joint, the support frame, and part of the pneumatic rod. The video shows the heim joint
rattling against the support frame and against the bolt used to secure the heim joint. It also
shows Sharron moving the nut used to attach the pneumatic rod to the heim joint with his finger.
After taking the video, Sharron testified that he shut down the machine and repaired it. (Tr. 626, 35
701–709; R. 41, 43)
3. Work orders for folder/stacker #2 and the heim joint
Respondent’s engineers carry an iPad/tablet that they use to document work orders and 40
access their emails. Arellano opened a work order for folder/stacker #2 on August 30. The work
order shows the job was assigned to Arellano, and that both Arellano and Servin worked on the
machine that day. In the notes section, Arellano wrote that they replaced the slide bars, belt
guard, belt guide [transfer table], and belts along with hardware that was missing and damaged.
Nowhere in the work order does it state that the heim joint was replaced, or that there were any 45
issues with the heim joint. The work order was closed on September 6. (Tr. 775, 897, 1090,
1246, 1307; R. 34 p. 2; R. 62(a))
JD(SF)–13–20
42
Arellano’s August 30 work order was accompanied by four photographs. According to
Marsh, Respondent encourages its engineers to include photographs with their work orders to
show the condition of the equipment before and after the repairs. The pictures show that the bolt
holes, where the transfer table is attached to machine’s railings/guides, were torn out, or 5
elongated. Similarly, the bolt hole through which the support frame attaches the to the heim joint
was also torn out/elongated, and the metal support frame was bent. (Tr. 1243–1244, 1246–47; R.
34 p. 2-3; R. 42)
There were also two other work orders for folder/stacker#2 introduced into evidence, one 10
opened on September 11, 2018, and another opened on October 3, 2018. The September 11
work order was opened by Arellano and closed the next day. In the notes of the work order,
Arellano wrote that the cylinder bolt had come loose and started to slam, so he removed the bolt
and inspected the area including the heim joint; both the support bore, and the cylinder shaft bore
were damaged. The notes also say that Arellano replaced various components including the 15
locking nut securing the heim joint. The work order shows that both Arellano and Servin
worked on the repairs that day. (Tr. 1307–08; GC. 50; R. 62(b), R. 63)
During his testimony, Arellano discussed his work on folder/stacker #2 which seemed to
correspond with the September 11 work order. Arellano said that about two weeks after the 20
initial repair, there was a noise coming from the machine and he saw the bolt and locking nut
connecting the heim joint to the support frame was loose. Arellano turned off the machine to see
if a new heim joint was available. According to Arellano, while looking for a new heim joint, he
saw Sharron and another coworker. He told Sharron that the nut/bolt on the heim joint had come
loose, asked if a new heim joint was available, or whether Sharron wanted him to just tighten the 25
bolt on the existing heim. Arellano said that Sharron told him to just tighten the bolt. Arellano
tightened the nut/bolt securing the heim joint, which resolved the problem for the moment.
However, he testified the same issue kept recurring. (Tr. 865–871)
The final work order for folder/stacker #2 was opened on October 3, 2018, by Servin. 30
According to Servin, that day the Kannegiesser technician was at the plant working on the unit
and noticed the heim joint was defective, and something was also wrong with a bearing, so they
shut down the machine. While the Kannegiesser technician worked on the bearing, Servin tried
to change the defective heim joint. Servin testified that he spoke to Marsh, who told him that a
new heim joint was in stock and they could replace the old one. However, when Servin tried to 35
change the heim joint, the new one was the wrong size. Servin took the old heim joint to the
office so Marsh could take measurements and order an appropriate replacement. He then put the
defective heim joint back on the machine. According to Servin, the defective heim joint was
finally replaced a couple days later. (Tr. 1089–1091; GC. 50)
40
Sharron testified there was nothing wrong with the heim joint on folder/stacker #2, and
nobody ever told him that it was defective. In fact, Sharron said the heim joint was replaced on
August 30 by Arellano and Servin. Thus, when he repaired the machine an hour and a half after
Servin returned it to production, Sharron claimed that the heim joint was brand new, and to his
knowledge never came loose again. That being said, none of the work orders show that the heim 45
JD(SF)–13–20
43
joint was replaced on August 30, and both the September 11 and October 3 work orders discuss
problems with the heim. (Tr. 623–25, 630, 634–35, 724–25; GC. 50, R. 62(b), R. 63)
Marsh testified that there was, in fact, an issue with a worn heim joint associated with the
transfer table on folder/stacker #2. Marsh said that the engineers found the heim joint was loose 5
and needed to be adjusted. When they got into the repair, they realized that there were various
components that also needed to be replaced. According to Marsh all this happened sometime in
around September 2018. Marsh also testified that sometime during this same time period Servin
told him that the heim joint needed to be replaced. According to Marsh, he either gave Servin a
new heim joint or ordered a new one; he could not say specifically. When asked whether the 10
machine continued to operate with the old heim joint, because a new one was not available,
Marsh answered “[i]t’s possible. Yes sir.” (Tr. 170) And, although Marsh did not know exactly
when, he testified that the original heim joint on the machine was ultimately replaced and thrown
away. (Tr. 137, 167, 170, 1244–45, 1265)
15
4. Servin’s discipline
According to Servin, during their September 1 meeting, Sharron gave him the written
discipline and showed him the video he had taken. Servin testified that he tried to explain to
Sharron the heim joint was defective, but Sharron told him he did not care. Sharron denied that 20
Servin said anything to him about the heim joint during the meeting. (Tr. 630, 1073–74)
According to both Sharron and Marsh, Servin was disciplined because the machine
malfunctioned after Servin finished the repairs and returned the stacker back into service on
August 30. That being said, no investigation was conducted as to why the machine needed 25
subsequent repairs and nobody else was disciplined for the work they performed on the machine
even though several people worked on it. (Tr. 174–75, 624, 699, 1278–79, 1313)
Marsh testified that he reviewed the situation regarding Servin’s discipline and discussed
the matter with Sharron. Marsh was in his office on August 30, and he did not witness firsthand 30
what actually happened, nor did he inspect any of the equipment. Instead, Marsh said that he
reviewed the surveillance video to get a timeline as to what occurred. According to Marsh, the
surveillance video showed that, within a few hours of the machine being returned into
production, it started showing signs of failure; it was not discharging properly and continued to
go into default. This required various engineers to work on the machine in order to put it back 35
into service and continue the production run. (Tr. 173, 1267–68, 1270, 1273–74, 1281, 1283)
Marsh further testified that, after Servin worked on the machine, the locknut securing the
heim joint came loose and the heim was moving laterally “rattling on its fitment” causing
extensive damage to the transfer table. (Tr. 300) To show the extent of the damage caused by 40
Servin’s original repair, Respondent produced at the hearing what Marsh said was the actual
transfer table from folder/stacker #2 that Servin installed on August 30, which according to
Respondent had to be replaced a few days later; corresponding photographs were also introduced
into evidence. (Tr. 300, 328–29, 1243–44; R. 42)
45
JD(SF)–13–20
44
Marsh testified that the nuts/bolts on the transfer table were not properly tightened after
Servin finished his repair on August 30 causing damage and requiring the transfer table to be
replaced again within a few days. According to Marsh, the transfer table was new when Servin
installed it on August 30, and it only lasted about 4 days. (Tr. 300–01, 327–29)
5
The transfer table Respondent produced at hearing had extensive damage. Instead of
being round, three of the bolt holes had become oval shaped. The hole where the heim joint
attaches to the support frame was egged out, as were two of the bolt holes where the transfer
tables attaches to the guides/rails. The support frame was also severely bent. Instead of being
straight the frame was clearly bowed at the point where it attaches to the heim joint. And, the 10
weld in one corner of the table was also cracked. (Tr. 1243–44; R. 42)
While Marsh testified that the badly damaged transfer table produced at the hearing, and
depicted in R. 42, was the one that came apart after it was installed by Servin on August 30, there
is counterevidence in the record showing otherwise. According to Marsh, transfer table in R. 42 15
is the same one that is shown in the photographs attached to Arellano’s original work order that
was created on August 30. (Tr. 1246–47) The pictures attached to Arellano’s work order show
damage to the transfer table, including elongated bolt holes and a bent support frame, which look
similar to the damage shown in R. 42. (R. 34, p. 3, R. 42) Servin testified that the bolt holes on
the transfer table he originally replaced on August 30 were “egged out,” which also corresponds 20
to the condition of the transfer table in R. 42. (Tr. 1139–40) Also, in both the video and the
photographs taken by Sharron, when he subsequently fixed the machine after Servin returned it
into service, the support frame is not bent; the support frame in R. 42 is bent. (R. 41(c), R. 43)
Moreover, the transfer table in R. 42 contains a manufacturer’s identification sticker near the
support frame. (R. 42) This sticker is not visible on the transfer table depicted in Sharron’s 25
video or photographs; the sticker should be there if the damaged transfer table in R. 42 was the
new one installed by Servin on August 30, and subsequently failed as a result of his faulty work.
(R. 41, 43) Instead, this evidence supports a conclusion that the transfer table in R. 42 is actually
the one that was taken off the machine during the original repair, and not the new one that was
installed by Servin. 30
5. Analysis
Again, the question here is not whether a lawful basis existed for disciplining Servin.
Instead, Respondent must show “that it would have taken the challenged adverse action in the 35
absence of protected activity, not just that it could have done so.” Rhino Northwest, LLC, 369
NLRB No. 25, slip op. at 3 (2020) (italics in the original) Respondent asserts that it properly
disciplined Servin for failing to tighten the bolts on the transfer table claiming that, as a result of
Servin’s botched repair “within two hours the new” transfer table “came lose, was damaged, and
had to be replaced.” (Resp’t Br., at 39) However, this does not comport with the evidence 40
provided by Respondent’s own witnesses.
First, as noted earlier, there is a serious question as to whether transfer table produced at
the hearing, as shown in R. 42, was the actual new transfer table that Servin put on the machine
on August 30, as opposed to the damaged transfer table that was removed that day. The fact that 45
the manufacturer’s sticker is missing from Sharron’s video and photographs (which purportedly
JD(SF)–13–20
45
show the new transfer table) supports a finding that the transfer table in R. 42 is the damaged one
that Sharron removed. Notwithstanding, even assuming it was the new transfer table Servin
installed, the damage did not occur within two hours of Servin’s repair as Respondent argues.
Instead, Marsh testified that the transfer table lasted “about 4 days” before it had to be replaced.
(Tr. 307) 5
Also, Respondent completely ignores the fact that Sharron turned the machine off,
repaired it less than two hours after Servin had done so, and said that after his repair the machine
was running fine. Sharron’s pictures and video do not show any damage to the support frame,
while the support frame depicted in R. 42 is clearly bent. Therefore, if the transfer table failed a 10
few days later, it is unclear why Sharron was not disciplined for bad workmanship in failing to
tighten the bolts, when Sharron was the last person to tighten the bolts and repair the machine
before it allegedly failed. Respondent’s disciplining Servin, while not disciplining Sharron, who
performed intervening repairs, is evidence of pretext. Zurn Industries, Inc., 255 NLRB 632, 635
(1981), enfd. 680 F.2d 683, 694 (9th Cir. 1982) (evidence of pretext included the fact foreman 15
who oversaw and worked with crew that performed allegedly faulty work was neither discharged
nor reprimanded, while all the employees were fired).
Moreover, the overwhelming evidence clearly shows that, whatever damage occurred to
the transfer table after the repairs by both Servin and Sharron, happened because of the faulty 20
heim joint. Marsh admitted that there were problems with the heim joint, and also admitted that
he likely told Servin to put the worn heim joint back on the machine, as Servin testified. The
subsequent work orders show there were continual issues with the heim joint coming loose, and
when Servin tried to replace it on October 3, Apex did not have a heim joint that was the correct
size. Also, Marsh admitted that the heim joint on the machine was ultimately replaced, and the 25
worn one was thrown away; there is no evidence that there were any other problems with the
machine after the heim joint was replaced. Finally, Marsh admitted that there was no
investigation into why folder/stacker #2 kept needing additional repairs after August 30. Under
these circumstances, I believe that Respondent’s disciplining Servin, when there was no
investigation into the machine’s continuous failures, and it was admitted that the heim joint was 30
worn and ultimately replaced, is evidence of unlawful motive.
As for Respondent’s claim that Servin and Arellano concealed the damage to the heim
joint by not listing it in the August 30 work order (Resp’t Br., at 40), a close look at the
document shows that it simply lists the work performed on the machine and the parts that were 35
replaced. (R. 62(a); R. 34 p. 2) The heim joint was not replaced that day, the workers simply
took the old one off, and put it back on. Therefore, there is a valid reason it is not listed. And, I
credit Servin’s testimony that he told Marsh they needed to order a new heim joint on August 30,
and that he raised the worn heim joint during his disciplinary meeting with Sharron on
September 1, but that Sharron simply did not care. There is no evidence of concealment here.40
Finally, the fact that a heim joint is not listed on the August 30 work order undercuts
Sharron’s testimony that Arellano and Servin put a new heim joint on the machine on August 30.
I do not credit Sharron’s testimony. Under these circumstances, I find that Respondent has failed
to rebut the General Counsel’s prima facie case, and the evidence shows that Servin’s September 45
JD(SF)–13–20
46
1, 2018 discipline was unlawfully motivated. As such, by giving Servin a written warning on
September 1, 2018, Respondent violated Sections 8(a)(3) and (4) of the Act.
G. Servin’s Discipline for Insubordination
5
Respondent had a disciplinary meeting on September 18, 2018, where Servin and
Arellano were both presented with two disciplines each, and Arellano was suspended.
Regarding Servin’s disciplines, one involved alleged insubordination that occurred on September
6, and the other involved work he performed on September 13 on a shirt ironing machine.
10
Servin’s discipline for insubordination stemmed from an argument on September 6, 2018
between Sharron and Servin that occurred at one of the ironing/folding machines. On September
6, two of Respondent’s ironing/folding machines, Iron #2 and Iron #3, had stopped working.
These machines are large industrial irons which iron and fold linens, such as bed sheets, using
multiple belts to move the laundry through the machine. Sharron confronted two engineers, 15
Chuy and Servin, about the fact the irons were not working, and nobody was fixing them. Both
denied knowing that any of the machines were down. As further discussed below, Sharron and
Servin walked to the ironing/folding machines, and eventually an argument occurred. (Tr. 649–
50, 1345)
20
Sharron, Servin, Arellano, and Marsh all testified about what occurred that day, or about
the discipline in general, and Respondent introduced a video of the incident into evidence.
Written statements from Sharron, Arellano, and two other employees were also introduced into
evidence.
25
1. Video of the incident
The video introduced into evidence actually consists of 3 separate video files, none of
which have sound. Marsh explained that Respondent has multiple cameras covering the work
area, and he chose the camera angle which he believed provided the best view of the incident. 30
When he tried to download the entire video Respondent’s computer program separated the
recording into three different files. As a result, there are short gaps between the videos, ranging
from 10 to 12 seconds. That being said, Marsh viewed the original video, as one continuous file,
and testified that nothing different or unusual occurred during those gaps. A review of the
videos appears to show that Marsh’s testimony is accurate. (Tr. 1233, Tr. 1259–60, 1290–91; R. 35
59, 60, 61)
The first video is 6 minutes and 48 seconds long. As it starts, the camera is pointed
primarily towards Iron #2, however the top of the frame shows a portion of Iron #3. The video
shows production workers idling about, with carts full of bed sheets staged in front of each 40
machine waiting to be loaded into the irons. The sheets are a tangled mess, and workers can be
seen trying to untangle the linens. As the video starts, the belts on Iron #3 are moving, but stop a
few seconds later. The belts on Iron #2 are not moving at all. At 52 seconds into the video, the
belts on Iron #3 start moving again, but they stop about ten seconds later. At 1:15 into the video,
Iron #2 starts operating, and soon after laundered sheets can be seen feeding through the belts. 45
Iron #2 continues operating throughout the rest of the video. At 1:36, Iron #3 has restarted. A
JD(SF)–13–20
47
worker is moving around in front of Iron #3, and sheets can be seen feeding through the belts.
However, at 2:30 into the video, the belts on Iron #3 stop moving again. (R. 59)
At 2:53, the production line supervisor named Daniel walks into the frame. After
speaking with someone he goes to the front of Iron #3, which is still not operating. Daniel stops 5
and apparently speaks to the machine operators, and then walks towards the back of the machine;
he is talking on his radio as he walks out of the frame. At 4:06 Daniel walks back through the
camera frame and goes towards the front of Iron #3; he is again talking on his radio. At 4:12, as
Daniel is walking out of the camera’s view, Sharron walks into the frame and goes towards the
back of Iron #3. It is unclear if Sharron and Daniel say anything as they pass each other. The 10
belts on Iron #3 are still not moving. Servin walks through the camera frame five seconds
behind Sharron, also going towards the back of Iron #3. As Servin walks towards the back of the
machine, Daniel walks into the frame and stops at the front of Iron #3. Although the view is
obstructed by a laundry cart, at 4:24 Daniel appears to press a few buttons on the machine and
the belts start moving; a few seconds later a sheet that was apparently stuck between the belts 15
can be seen moving. At 4:33 Arellano walks into the camera frame and goes straight towards the
back of Iron #3. As Arellano walks through the frame, at 4:35, the belts on Iron #3 stop again.
At 4:45 Sharron walks to the front of Iron #3 with Daniel a few feet behind him. They stop at
the front of the Iron #3, and Sharron appears to be doing something to the machine, or explaining
something, as Daniel watches him. Sharron can be seen pointing to Daniel, and also pointing to 20
the machine. At 5:15 the two separate, with Daniel walking one way and Sharron going towards
the back of Iron #3. The belts on Iron #3 are still not moving. (Tr. 203; R. 59)
At 6:38 the camera jerks quickly to the left, and then moves steadily towards the right
and stops at 6:42 after Sharron, Servin and Arellano are all in the frame. They are standing at the 25
left, rear side of Iron #3, in front of the machine’s service panel. One door to the service panel
has been removed exposing various plugs, outlets, circuits, and wires. Servin has his back
towards the service panel and is a few feet away from it, facing the camera. Sharron has his back
to the camera and is facing Servin; the two are about an arm’s-length apart. Arellano is facing
both Sharron and Servin, with his left side towards the camera. Servin and Sharron are arguing 30
with each other while Arellano is standing there listing. The arguing continues until the video
ends six seconds later. (R. 59)
The second video lasts for only 18 seconds. Servin, Sharron, and Arellano are all
standing in the same place with Arellano listening while Servin and Sharron are arguing. The 35
video shows that Servin is wearing a pocket protector with the Union’s logo over his right
pocket. The third video picks up with all three men again standing in the same spots and is 3
minutes and 9 seconds long. Servin and Sharron are still arguing, while Arellano is listening. In
all three videos, while Servin and Sharron are arguing with each other, they can be seen at
various points shaking their heads back and forth as they speak, waving their hands and arms, 40
and pointing their fingers up, down, back and forth. (R.59, 60, 61)
About half-way through the third video, at 1:36, Sharron points his fingers around–as if
giving instructions to both Servin and Arellano and then walks away. At 1:41, Sharron walks out
of the frame. As Sharron finishes giving instructions and walks away, Arellano says something, 45
gesturing with his arms out. At the same time, Servin turns around, grabs the door, and begins
JD(SF)–13–20
48
putting it back on the service panel. Arellano then walks along the back of the machine, towards
the opposite corner. While Servin is putting the door back on the service panel his head tilts to
the left, in Sharron’s direction; he is either looking at, or saying something to, Sharron who is out
of the frame. At 1:44 Sharron walks back into the video holding a cell phone in his left hand
with his right hand out. Sharron starts speaking forcefully to Servin, standing about a foot or so 5
away from him, and pointing his right finger at Servin as he speaks. Servin shakes his head back
and forth, as if saying “no,” and resumes securing the service panel door, locking the top lock.
While Servin is locking the top of the panel, Sharron walks away again, speaking to Servin and
fidgeting with his phone as if to call someone. While this is going on, Arellano is at the opposite
corner of the machine, at the top-right of the video. At 1:46 Arellano appears to reach for 10
something with his right arm, as if trying to push a button. Arellano does this twice, and the
belts on Iron #3 start moving; a sheet can then be seen traveling along the machine’s belts. The
machine started again at 1:53 into the video, just as Sharron was walking away for the second
time, fidgeting with his phone. (R. 61)
15
After Iron #3 starts, Arellano walks along the back of the machine towards Servin. They
look at each other and appear to smirk/chuckle; Servin then walks away. Arellano notices that
the bottom of the service panel door is loose. He pulls out the bottom half of the door, spends
about 30 seconds fiddling with it, and then secures the bottom lock on the door. About 25
seconds later, the video camera zooms out, showing a wide shot of the shop floor. The camera 20
then repositions itself to focus generally on Irons #2 and #3. (R. 61)
2. The written statements
Respondent ultimately received four written statements regarding what occurred that day. 25
Two statements, one from Sharron and one from Arellano, were received before Servin was
given his discipline on September 18. The other two statements, one from Daniel and another
from a production employee named Alicia (also known as Bertha) were received after Servin
was given his written warning. (Tr. 1194–95, 1198)
30
In his statement, dated September 19, Daniel writes that he was with Arellano and Servin
checking on Iron #3, when Sharron came with “a really loud voice” telling him to check his
employees regarding how they feed sheets into the iron. Sharron was telling Daniel that the
corners of the sheets were sticking out too much. Daniel explained this to his employees, and
when he was doing so he turned around and saw that Servin was arguing with Sharron. Daniel 35
did not know what they were arguing about. (GC. 44, p. 5; Tr. 1203)
Alicia wrote her statement in Spanish, and it was then translated into English. In her
statement, which is also dated September 19, Alicia writes that she was “catching sheets” for
Iron #2 on September 6 when she heard Sharron “screaming” at Servin. She did not understand 40
what Sharron was yelling about, as she does not know much English. However, she noticed that
Servin seemed very upset (Tr. 203–04; GC. 44, p. 3–4)
Regarding his statement, Arellano testified that he emailed it to Marsh, right before
Servin’s disciplinary meeting, as Marsh had asked him for it. In his account, Arellano wrote that 45
Sharron arrived at the ironing line where he ran into Daniel and scolded him about his workers.
JD(SF)–13–20
49
Sharron then made his way to where Arellano was standing and started complaining about
Servin, Chuy, and McCann. Servin then walked up and Sharron started scolding him, initiating
an argument. Sharron mentioned that Marty Martin was “surveillancing members of the
bargaining unit” and also said that Arellano was nowhere to be found. Arellano ends his
statement by saying Sharron was extremely unprofessional and angry during this encounter, and 5
that at no time did Sharron give Servin a direct order. (Tr. 909; GC. 19 (b))
Finally, Sharron testified he wrote his statement the day of the incident and that he was
“hot on the temperature” and “still pretty disturbed” when he wrote it. In his statement, Sharron
states that he was talking to Servin, telling him not to walk by machines when they are down. 10
Arellano came to the area where they were talking, and Sharron asked Arellano where he was
while the machine was down. Arellano said he was at the dry-cleaning station. Sharron then
asked Servin to fix the machine, as the breaker needed to be reset. Servin started complaining
that other workers come into work wearing flip flops and take too long to get onto the work
floor. Sharron told Servin not to concern himself with others, but Servin persisted on the point. 15
Sharron told Servin again not to concern himself with other workers, as he tends to clock out 7–
10 minutes early every day. Servin said the claim was not true, and he does not clock out early.
Sharron then told Arellano that he comes in at 4 a.m. and does not take his tools or make it out to
the shop floor until 5 a.m. Sharron then asked Servin and Arellano not to complain about other
workers. He asked Servin to fix the machine first and then they could review the clocking issue 20
later. Sharron wrote that Servin said “no, he was going to prove it now.” Sharron then asked
Servin to fix the machine now, but Servin said “no” a second time. Sharron wrote in his
statement that he then walked away from the situation, as did Servin, and Arellano reset the
machine. (Tr. 652, 659; GC. 19(c))
25
3. Gene Sharron’s testimony
According to Sharron, Marty Martin was the one who alerted him to the problems with
Iron #2 and Iron #3 that day. Sharron testified that Marty Martin called him on the phone, asked
why the irons were down, and said there were no engineers working on the machines. Sharron 30
said he then walked out of his office and the first person he saw was Chuy, a maintenance
engineer who was ending his shift. Sharron spoke to Chuy, “yelling” at him in a higher than
usual voice. (Tr. 650) Sharron told Chuy that he could not walk by machines when they were
down, but instead needed to fix them. Chuy replied saying he was off, and that none of the
machines were down. Sharron said that the machines were, in fact, down and Chuy was there 35
when it happened. Chuy again disagreed, saying he does not walk by machines when they are
down; Sharron told Chuy he did this time. Servin then joined the conversation and, agreeing
with Chuy, said all the machines were running and nothing was broken on the floor. Sharron
said he was wrong, told Servin to follow him out to the irons, and the two walked out to Iron’s
#2 and #3. (Tr. 649–50, 1327, 1344–45) 40
Although Sharron testified initially that he was in his office when Marty Martin called on
the phone saying the machines were down and no engineers were present, he later changed his
testimony, saying Martin did not call him on the phone. Instead, when asked why he accused
Servin of walking by a machine that was not working, Sharron claimed that he was in Marty 45
Martin’s office speaking with him when Martin turned over his shoulder and told Sharron to
JD(SF)–13–20
50
come here. Sharron claimed that Martin then showed him “on film” Servin walking by the
machine when it was down. (Tr. 1348) In fact, Sharron claimed that Martin showed him “on
film” Chuy, McCann, and Servin all walking past the machine while it was not working.
According to Sharron, Marty Martin wanted to know why the engineers were not fixing the
machines. Sharron said he then left Martin’s office, went to Bay 9, opened the door, and saw 5
Chuy. (Tr. 1348–1351)
After walking to the ironing/folding machines with Servin, Sharron testified that Iron #2
had started working, as utility engineer Kevin McCann was able to get it running. McCann then
started working on Iron #3 trying to clear a jam in the machine. According to Sharron, sheets 10
can sometimes jam the machine when they are being ironed/folded, and clearing the jam causes
the rollers to move backwards producing an overload which trips a circuit breaker. (Tr. 650,
1345)
Sharron testified that he walked to the back of Iron #3 and saw a circuit breaker had 15
tripped, so he removed the door to the service panel.42 As he did so, he was telling Servin that he
cannot walk by irons when they are down, but instead he needed to fix them. Servin denied
seeing the machine was down. At this point, Arellano was watching the two of them as he had
“come over the top of the stairs.” (Tr. 1328) Then, according to Sharron, “all of the sudden”
Servin started saying that Sharron could not pick on just Servin and Arellano. (Tr. 650) Servin 20
said that Sharron also needed to yell at McCann and another engineer named Joe who would
come to work, but then take 10 minutes doing other things like taking off their flip-flops, putting
on their work uniforms, or getting their tools ready, before they actually started working. (Tr.
650, 1328, 1331–32, 1347, 1365)
25
When Servin brought up the other engineers, Sharron testified that he told him they were
not there to talk about what other employees do, but that Servin cannot walk by a machine when
it is down, as his job is to keep them running. According to Sharron, during their interaction,
Servin kept trying to bring up what the other engineers were doing, while Sharron was
explaining that what other people did had nothing to do with the machine being down. Sharron 30
said that Servin “just kept going on” so Sharron finally told him “you guys do not want to go
there with me.” (Tr. 1329) Sharron told Arellano that he had previously clocked in at 4 a.m., but
did not put his tools together until 5 a.m. He then said that Servin clocks in and takes 15 minutes
to get his tools together, leaves seven minutes early every day, and also goes to the lunchroom
for a half-hour at the end of his shift to do bookwork, which was excessive. Sharron said that he 35
was not complaining about those things and did not want to go there. Instead, he wanted to talk
about the machine being down, and Servin fixing machines instead of walking by them. Even
though Sharron set forth an initial timeline in his testimony where Servin “all of the sudden”
started saying that Sharron could not yell at him and Arellano without calling-out the other
engineers, he then testified that Servin brought up the other workers only after Sharron told him 40
and Arellano that they were late starting work each day. (Tr. 650–53, 1329–1331)
42 At various times, Sharron, Arellano, and Servin referred to the circuit breaker as “F-2,” the “F-2 breaker,” or the
“F-2 relay.” (Tr. 649–50, 875, 1093, GC. 19(c)) F-2 appears to reference an error code on the machine when the
breaker is tripped. (Tr. 1093, 1260)
JD(SF)–13–20
51
Sharron further testified that, in reply to his accusations, Servin said that Sharron could
not prove he leaves seven minutes early every day; Sharron replied saying Respondent had
cameras at the facility that go to the time clock. Sharron believed Servin was insinuating that he
wanted to go look at the cameras, so Sharron told him to fix the machine and they would then go
look at the cameras afterwards. Sharron claimed that Servin “told me no,” and Sharron said he 5
was going to fix the machine himself and that he then “reached over and pushed the reset button
[him]self to start the machine.” (Tr. 656–58) Sharron said he then told Servin “it was
insubordination” and started to walk away. (Tr. 657) As he was walking away, Servin protested
saying that it was not insubordination. Sharron then got mad, turned around, went back to Servin
and told him that his conduct was, in fact, insubordination and Servin needed to look up the 10
meaning of the word, because he refused to fix the machine. At this point, Sharron testified the
conversation was “heated.” (Tr. 657–58; 1335–36)
Sharron claimed that he told Servin three times to fix the machine. He also testified that
he told Servin that he was not supposed to speak to him that way, and that Servin could be fired 15
for his conduct. Then, according to Sharron, Servin turned around and started to put the service
panel door back on the machine, but Arellano finished securing the door while the machine was
working. Sharron testified that he then walked away and called Marty Martin. He told Martin
what happened, and said he wanted to fire Servin on the spot. Marty Martin told him not to do
so. Sharron claimed that he then drafted the written discipline. Sharron believed that Servin’s 20
conduct constituted insubordination because he refused to fix the machine after Sharron told him
to do so three times, and he also talked back to Sharron. In the course of their interaction,
Sharron said that Servin kept changing the subject to what other employees were doing, and was
getting irate, pointing, screaming, and yelling at Sharron. Meanwhile, Sharron testified that he
was just “standing still letting him vent.” (Tr. 651) (Tr. 651–52, 657–58, 1336, 1365–66; GC. 25
19)
While Sharron testified that he was the one that “had the magic finger” (Tr. 657) and
pushed the reset button on the machine, his written statement says that Arellano pushed it. When
shown his written statement, Sharron then testified that Arellano did push the reset button but did 30
so only after Sharron had pushed it. Sharron said that he was sure the machine started after he
pushed the reset button but did not know for a fact that it did. That being said, the video does not
show Sharron pushing any buttons or otherwise doing anything to start the machine when Iron
#3 eventually started working after the argument concluded. (Tr. 657–59; GC. 19)
35
Regarding Arellano, Sharron testified that, while he did not say much during the
interaction, he was taking Servin’s side by just nodding his head and agreeing with everything
Servin said. And, at one-point, Sharron turned to Arellano and told him that if he was a man, he
would tell Servin that he was in the wrong. According to Sharron, Arellano just stood there and
looked at him. (Tr. 656, 1330) 40
Ultimately, the problem with Iron #3 was that the sheets were getting jammed in the
machine. Sharron testified that, to get the machine working again, the jam needed to be cleared,
the service panel door needed to be removed, the overload switch reset, and then the start button
needed to be pushed. As to who was manipulating the video camera that was filming the 45
incident, Sharron testified it was Marty Martin. Finally, Sharron said that after he walked away
JD(SF)–13–20
52
from the incident the last time, he did not have any other conversations with either Arellano or
Servin about the incident that day. (Tr. 659, 1363–65)
4. Servin’s testimony
5
Servin testified that he and Sharron walked out together to Iron #3 from Bay 9.
According to Servin, the problem with Iron #3 was that the breaker had tripped, so he checked
the machine to see if there were any jams, and by the time he reached the back of the machine to
reset the breaker Arellano had already reset it. Servin testified that, at this point the machine was
back online and the issue had been resolved. When he reached the back of the machine Servin 10
said that Sharron started yelling at him for not being on the production floor at 8 a.m. Servin
was offended by Sharron’s comments. He protested saying there was one engineer who comes
to work wearing flipflops, clocks-in, and spends 15-20 minutes in the tool room before working
and another one that comes to work 15 minutes late consistently. In reply, Sharron told him not
worry about the other engineers, since Servin clocks out 10 minutes early every day and goes 15
home. Servin denied clocking out early and said that Sharron was going to have to prove the
allegation. Sharron replied saying he was going to prove it by getting the timecard records, and
Servin should not be concerned about what the other engineers are doing. According to Servin,
Sharron then walked away and Servin went back to work. (Tr. 1093–95)
20
5. Arellano’s testimony
Arellano testified that he was on the side of Iron #3 resetting the breaker when the
incident occurred. According to Arellano, Sharron told Servin that he was seen on camera
having a little powwow with McCann and Chuy while the equipment was down. Servin replied 25
saying that, if Sharron was going to chew his ass, he needed to chew everyone’s ass because
McCann comes to work in flipflops, clocks-in and then gets dressed, and another engineer named
Joe always comes in late. According to Arellano, Servin was frustrated. Sharron replied saying
“you don’t want to go there.” (Tr. 876) At some point during this interaction, Sharron told
Arellano that the machines were down and he was nowhere to be found. He also told Arellano 30
that Respondent had seen him clocking in at 4 a.m. but waiting an hour before making it out to
the work floor. (Tr. 142, 875–77)
Arellano also said that, during the incident, Sharron told the engineers they were
responsible if they saw an operator feeding sheets into the irons improperly. Arellano claims he 35
said that it was not their responsibility, because the CBA outlines their work. In response,
Sharron told them to stop arguing and fix the machines; he then walked off. (Tr. 878–79)
6. Marsh’s testimony
40
Marsh testified that he approved the discipline issued to Servin for insubordination.
According to Marsh, he reviewed the video of the incident and then discussed the matter with
Sharron, who also provided him with a written statement. Marsh said that, during their
discussion, Sharron told him that he asked Servin to restart the equipment, but instead of doing
so Servin started talking about other employees, their behavior, and how they dress in and out for 45
work. Sharron told Marsh that Servin’s conduct was insubordination because he asked Servin to
JD(SF)–13–20
53
restart the equipment several times, and Servin refused to do so. Marsh testified that Servin was
written up for insubordination because he refused to make repairs on the machine. Marsh
confirmed that the video shows Arellano pushing the button to restart Iron #3. (Tr. 200, 1240–
41, 1260–61)
5
After reviewing the video of the incident, Marsh believed Sharron’s body language
showed that he was calm; Marsh thought Sharron was moving slowly and taking his time to
point things out. Marsh testified that he did not see Sharron getting into anyone’s personal
space, and did not see him using emotional gestures, like “hands flying, anything like that.” (Tr.
1201) Instead, according to Marsh, when he watched the video, he saw Sharron standing in front 10
of other employees having a conversation. Also, Marsh testified that, before the September 14
disciplinary meeting, he did not speak with anyone about the incident except Arellano and
Sharron. Marsh said that this was the first time an engineer had been disciplined for
insubordination. (Tr. 202, 1201–02)
15
7. Conversation with Sharron after the incident
Arellano and Servin both testified that after the incident, later in the day, they had another
conversation with Sharron. According to Arellano, he asked Sharron what they could do to work
better together saying that whatever Sharron wanted them to do they would do it. In reply, 20
Sharron said, he was getting resistance from Arellano and Servin, and that he was getting
pressure from his bosses to “write you guys up.” (Tr. 880) Sharron then said that he was going
to have to write-up Arellano for the water valve on press #1, an episode that occurred the
previous day, and write-up Servin for insubordination regarding the incident earlier that day at
Iron #3. Sharron said that he had asked Servin to fix the machine twice and that Servin said no 25
twice. Servin disagreed with what Sharron said. Arellano testified that during this conversation
Sharron told him to “be a man, tell the truth.” (Tr. 882) In reply Arellano told Sharron that he
was telling the truth, and that he never heard Sharron give those instructions to Servin. (Tr. 879–
882, 1095)
30
Regarding this conversation, Servin testified that it occurred between tunnels 1 and 2 and
Sharron approached them saying that he was going to write-up Servin for insubordination for
refusing to work on the machine; Servin replied saying he never refused to work on any
machine. Sharron then told Arellano to stand up, be a man, tell the truth, and confirm that he
heard Sharron tell Servin to work on the machine. Arellano replied saying that he did not hear 35
Sharron make any such statement. Then, Sharron told Arellano that he was not planning to write
him up for the water valve incident but was going to do so now. (Tr. 1095–96)
As for Sharron, he claimed that this conversation occurred about two weeks after the
September 6 insubordination incident, and after he had already drafted Arellano’s discipline 40
regarding the water valve. According to Sharron, he was doing a walkthrough of the plant when
he happened to come through tunnels 1 and 2. Arellano and Servin were walking towards him
and asked if they could have a “friend to friend” conversation. Sharron said “sure,” and Servin
then said “Gene, what do you expect from us?” According to Sharron he said that he expected
them to do their work like they did before and go home. He then said that was all he ever asked 45
and was not asking anything more. (Tr. 1314–15)
JD(SF)–13–20
54
8. Servin’s meeting on September 14
Servin testified that Sharron tried to discipline him for insubordination the morning of
September 14. That day Sharron called Servin into his office and tried to give him the written 5
warning. However, Servin said that he wanted his union representative present for any
disciplinary meeting. The two of them then went to Marsh’s office and Sharron told Marsh that
Servin wanted a union representative. The meeting stopped. According to Servin, later that day,
he was putting his toolbox away when Marsh came into the toolroom and said that, he knew
Servin wanted his union representative, but they needed to take care of this right now. The two 10
of them walked to Sharron’s office where Sharron was waiting. According to Servin, he told
Marsh and Sharron that they should check the video of the incident before writing him up; Marsh
then left the office, saying he was going to go look at the video. While Marsh was gone, Servin
texted Ed Martin at the Union, who instructing Servin to invoke his Weingarten rights.43 When
Marsh returned, Servin told him that he had spoken with Ed Martin who instructed him to invoke 15
his Weingarten rights. The meeting then ended with Marsh telling Servin that they would take
care of the matter the next week. (Tr. 1100) (Tr. 1097–99; 1100)
According to Marsh, he discussed the alleged insubordination incident with Servin on
September 14 in his office. Marsh testified that, during the meeting Servin asked for Respondent 20
to review the surveillance video, saying that whatever they thought had happened did not occur.
He also invoked his Weingarten rights, so the meeting ended and Servin was returned to work.
Notwithstanding Servin’s requests, Marsh testified that he had already decided to discipline
Servin as of the September 14 meeting. (Tr. 198–99, 201–202)
25
9. September 18 disciplinary meeting
Servin reported to work on September 18, and Marsh notified him by radio to come to the
office for a meeting with his “favorite union rep,” referring to Arellano, to deal with the
insubordination write-up. (Tr. 1101) Servin went to Marsh’s office. Present was Marsh, 30
Sharron, and Arellano; Servin was presented with his discipline. The discipline itself is dated
September 6 and is signed by Sharron. Parts of the document were clearly drafted by Sharron,
and he wrote that Servin was being disciplined for insubordination. The document also states,
“investigation still ongoing.” It is obvious that someone else’s handwriting is also on the
document and it appears to be Marsh’s.44 Marsh’s handwriting was clearly added after Sharron 35
drafted the original document as it states: “Review detail on issue – video reviewed, Weingarten
rights, read both written statements (Gene, Adam’s) Joseph [Servin] requested to produce a
written statement. He stated no written statement would be given.” (GC. 19) Servin signed the
document on September 18 and wrote “under protest” beneath his signature. (GC. 200, 1101–
02; GC. 19) 40
43 See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 256 (1975) (explaining that Section 7 of the Act gives union
members the right to be accompanied by a union representative during certain investigative interviews conducted by
their employer).
44 The handwriting is similar to that in GC. 18 and GC. 20, which were drafted by Marsh.
JD(SF)–13–20
55
During the meeting either Arellano or Servin asked Marsh whether Respondent had
spoken with all the of the witnesses to the incident. Marsh replied saying there were no other
witnesses. Arellano then told Marsh there were two witnesses and gave Marsh their names.
Marsh said that he would get the plant manager to take their statements. As discussed later,
during this same meeting Servin also received a discipline regarding an incident involving a 5
double-buck press, and Arellano was disciplined and suspended. (Tr. 911, 1103, 1105)
That day Marsh sent an email to Dramise, Marty Martin, and Sharron, with of summary
of what Marsh said were his notes of the meeting regarding Servin’s insubordination discipline.
Among other things, the email says that, during the disciplinary meeting Arellano asked that they 10
be allowed to review the video. Marsh said they could not review the video until all the written
statements were collected. Arellano also asked if there were any witness statements or other
witnesses; Marsh replied saying that Respondent had requested a statement from Daniel, and that
the video showed Alicia was present. It is clear from the email that, as of September 18,
Respondent knew that there were two other witnesses to the incident but had not received 15
statements from them. (Tr. 1186–1193, 1199–2000; GC. 44)
10. Credibility of Sharron and Marsh
I generally did not find Sharron to be a credible witness. He was visible hostility towards 20
both Servin and Arellano, their reinstatement, their role in the Union’s election victory, and the
fact Respondent’s facility was unionized. While testifying, when confronted with an
inconsistency or fact that did not support his version of events, Sharron would just change his
testimony. For example, Sharron first testified that Marty Martin called him on the phone, told
him the machines were down and no engineers were working on them, and that he walked out of 25
his office and saw Chuy. However, when asked how he knew Servin had walked by Iron #3
when it was not working, Sharron changed his testimony saying Marty Martin did not call him
on the phone, but instead said he was in Marty Martin’s office and saw this occurring in real time
“on film.”
30
Moreover, parts of his characterization of what occurred did not comport with the video
or the written statement made by Alicia. For example, Sharron claimed that he just stood there
and let Servin vent, while Servin was getting irate, screaming, and yelling at Sharron. However,
the video clearly shows otherwise. Similarly, Sharron testified that he was the one with the
“magic finger” that pushed the reset button to restart Iron #3. However, his written statement, 35
along with the video, shows that it was Arellano who did so. And, as noted by Alicia in her
written statement, she heard Sharron “screaming” at Servin who seemed very upset. Sharron
also seemed to conflate his testimony about what he witnessed first-hand while the incident was
occurring, with things that happened after the fact or that he saw in the video. For example,
Sharron testified that that Arellano was the one who secured the service panel door. While the40
video does, in fact, show this is what happened, Sharron had left the area well before Arellano
started working on the service panel door.
Marsh’s testimony about this incident also shows why his credibility is questionable.
Marsh testified that after reviewing the video he believed that Sharron’s body language showed 45
that he was calm, that Sharron was moving slowly, taking his time to point things out, was not in
JD(SF)–13–20
56
anyone’s personal space, and he did not see Sharron using emotional gestures, “hands flying, or
anything like that.” Instead, Sharron was standing in front of other employees having a
conversation. (Tr. 1201) Not only does Marsh’s testimony conflict with what was written by
Alicia, it does not comport whatsoever with the video of the incident. Even when a video was
introduced into evidence that clearly showed what was occurring, Marsh was still reticent to 5
testify accurately for fear of hurting Respondent’s case. I have generally discredited the
testimony of both Sharron and Marsh in this proceeding and have only relied upon their
testimony when it is corroborated by other credible evidence.
11. What occurred on September 610
I find the credited evidence, along with the inferences derived therefrom, show that
Sharron was in his office when he received a phone call from Marty Martin who scolded him
saying that the ironing/folding machines were down, there were no engineers present to fix them,
but instead the engineers (including Chuy, McCann, and Servin) were standing around talking to 15
each other. Sharron then walked out of his office and interacted with Chuy near Bay 9, yelling
and accusing him of walking by a machine when it was down. He did the same to Servin when
he joined the conversation. Sharron was still mad when he went to Iron #3 and yelled at Daniel
because the production workers were misfeeding the sheets into the machine. When Sharron,
Servin, and Arellano gathered at the back of Iron #3, whatever work that was needed to have 20
been accomplished in the service panel was completed, but the panel door was still off. And the
only thing that needed to be done for the machine to start working again was for somebody to
physically push the reset button. However, Sharron was upset and started screaming at the
engineers, focusing his ire particularly on Servin. He said that Servin was seen on camera
talking with McCann and Chuy, and accused Servin of walking by the machine while it was 25
down, saying that Servin needs to fix machines when they are down instead of walking by them.
Sharron then expanded his complaints. He demanded to know where Arellano was when the
machine was down and said that Arellano would clock in but wait around before actually starting
work. He then accused Servin of clocking in and taking his time to get his tools together before
he actually started working. 30
Servin was offended by Sharron’s accusations. Servin told Sharron that, if he was going
to chew out his ass, he needed to chew out everyone’s ass and not just pick on him and Arellano.
Servin told Sharron that McCann comes to work in flip-flops, clocks-in, and spends 15–20
minutes in the tool room getting dressed for work, and that another engineer named Joe always 35
comes in late. Sharron and Servin then started arguing, with Sharron saying that Servin did not
“want to go there.” Sharron told Servin that he took too long to complete his paperwork each
day while sitting around the lunchroom and accused Servin of clocking out early every day.
Servin denied the accusations and demanded to see proof of what Sharron was asserting. The
two continued arguing, going back and forth about what other engineers were doing/not doing, in 40
comparison to Servin, and whether Sharron could prove/not prove his claim that Servin clocks
out early or loafs around. Towards the end of the argument, Sharron told Servin to stop arguing
and start the machine, pointing towards the service panel and the reset button, Sharron also told
Servin his conduct constituted insubordination, and he then walking away. As Sharron walked
away, Servin turned towards the service panel and put the door back on the panel as Arellano 45
walked towards the rest button. As he was securing the service panel door, Servin turned
JD(SF)–13–20
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towards Sharron and said that he was not being insubordinate. Sharron heard the comment,
turned around, and came back to Servin. Sharron was mad, and angrily told Servin that his
conduct was, in fact, insubordination, because he refused to fix the machine and he needed to
look up the meaning of the word. While Sharron was yelling at Servin, Arellano was pushing
the reset button on Iron #3, restarting the machine. Sharron then called Marty Martin as he 5
walked away while Servin locked the top lock on the service panel door.
In his testimony, Sharron insisted that he told Servin multiple times to fix the machine
and Servin refused to do so. That being said it is clear from the video that, from the time the
argument began until the argument ended and the machine restarted, there was nothing left to do 10
to fix the machine except push a button, which Arellano did after Servin and Sharron stopped
arguing.
Later that day Arellano and Servin had a discussion with Sharron near tunnels 1 and 2.
Arellano asked Sharron what he expected from them, and how they could work better together. 15
Sharron told them to do their work and go home. He further said that Arellano and Servin were
giving him resistance, and that his bosses were pressuring him to “write you guys up.” (Tr. 880)
Sharron told Arellano that he was going to have to write him up for the water valve on press #1,
an incident that occurred the previous day, and that he was going to write up Servin for
insubordination, saying he asked Servin to fix the machine twice, and Servin said no twice. 20
Servin replied saying that he never refused to work on the machine. Sharron then told Arellano
to stand up, be a man, and tell the truth. Arellano said that he was telling the truth, and that he
did not hear Sharron make that statement.
12. Analysis25
As with the other disciplines, the issue here is not whether Respondent could have validly
disciplined Servin for insubordination, but whether Apex has shown “that it would have taken
the challenged adverse action in the absence of protected activity.” Rhino Northwest, LLC, 369
NLRB No. 25, slip op. at 3 (2020) (italics in original). Respondent has not met its burden to 30
show by a preponderance of the evidence that it would have done so.
According to Marsh, Servin was disciplined for insubordination because he refused to
make repairs on the machine. However, the credited evidence shows that Servin did not refuse
to make any repairs. By the time the argument started, the repairs were complete and the only 35
thing left to do was for someone to push the restart button and to replace the service panel door.
After Sharron left the area, Servin turned around and replaced the panel door while Arellano,
who was closest to the reset button, walked over and pushed it. The machine then started
working. This was clearly evident from the video which Marsh said he watched before the
September 18 meeting. The only delay was caused by the argument, which both Sharron and 40
Servin participated in equally. And, Servin could hardly be faulted for complaining that Sharron
was generally picking on him and Arellano, as the facts set forth herein show this was true. As
such, I find that Servin did not refuse to make any repairs on the machine, nor did Respondent
have a good faith belief that he engaged in this conduct. Olathe Healthcare Center, Inc., 314
NLRB 54, 54 (1994) (Employer failed to meet its Wright Line burden where no competent, 45
JD(SF)–13–20
58
credible evidence was presented that employee had engaged in wrongdoing, or that it had a
good-faith belief the employee was engaged in misconduct).45
Also, Marsh testified that as of September 14 he had already decided that Servin was to
be disciplined, even though Respondent had not interviewed all the witnesses to the incident or 5
received written statements from them. And, when Servin was given his discipline on September
18, Respondent had still not received any written statements from the neutral witnesses. This is
evidence of unlawful motive. Shamrock Foods Co., 366 NLRB No. 107, slip. op. at 13 (2018)
(employer’s investigation is evidence of discriminatory motive when it fails to interview key
witnesses) citing American Crane Corp., 326 NLRB 1401, 1414 (1998), enfd. mem. 203 F.3d 10
819 (4th Cir. 2000); Aliante Gaming, LLC, 364 NLRB No. 78, slip op. at 13 (2016) (sham
investigation where employer failed to obtain written statements from other employees present
when the incident occurred).
During the conversation that occurred after the incident, Sharron told Arellano and Servin 15
that they were giving him resistance, that he was getting pressure from his bosses to write them
up, and that he was going to have to write-up Arellano for an incident that occurred the previous
day involving a water valve, and write-up Servin for insubordination. Considering the
background events that occurred between Respondent, Arellano, and Servin, and the fact that
Arellano and Servin were the only two union stewards at the facility, I find that this statement is 20
further evidence of Respondent’s unlawful motive. Production Plated Plastics, 247 NLRB 595,
596 (1980), enfd. 663 F.2d 709 (6th Cir. 1981) (ALJ properly relied on supervisor’s statement to
employee that he had been under pressure to discipline and terminate employees because of the
union campaign as evidence of unlawful motive). I also find that this conversation also
constitutes an unlawful threat, in violation of Section 8(a)(1) of the Act. Given the context in 25
which this statement was made, including the fact Arellano and Servin were union stewards, and
the numerous unfair labor practices found herein, Sharron’s statement constitutes an unlawful
threat. KTRH Broadcasting Co., 113 NLRB 125, 126 (1955) (supervisor’s “friendly warning to
[union activist] that ‘they are out to get you at all costs’ was a threat.”). Avondale Industries,
Inc., 329 NLRH 1064, 1411 (1999) (telling employee who was wearing union insignias to 30
“watch [his] butt” because “you know they are out to get you,” constitutes an illegal threat).
Based upon the foregoing, I find that the Respondent has not met its burden of proving by
a preponderance of the evidence that it would have disciplined Servin absent his union and other
protected activities. Accordingly, I find that the discipline issued to Servin for insubordination 35
violated Section 8(a)(3) and (4) of the Act.
H. Servin’s Work on the Double-buck
1. Background40
In its dry-cleaning operations Respondent uses a machine to press shirts referred to as a
“double-buck;” there are about four double-bucks at the facility. A double-buck is basically a
45 While Sharron testified Servin was also insubordinate because he talked back, it was clear that Marsh conducted
an intervening investigation of the incident for Respondent and Marsh was the one who approved this discipline.
Marsh was specific that Servin was disciplined for refusing to make repairs on the machine. (Tr. 200, 1260)
JD(SF)–13–20
59
double shirt press. The machine has two torso-forms which are fitted with shirts. Each form has
extenders to clamp the sleeves/cuffs and a chrome clamp folding down from the top, putting
pressure on the neck, to hold the shirt collar in place. The ironing/pressing mechanism is on one
side of the double-buck, and basically squeezes down on the torso form pressing the shirt with
hot steam which blows out through the sleeves. A device on the machine rotates the forms 5
through the ironing mechanism. As a one shirt is being pressed, a worker fits a clean shirt over
the other form. The machine then rotates; the ironed shirt is unloaded, and a new shirt put on,
while the shirt on the other form is being pressed. The machine is rotated again, and this process
continues throughout the shift. The double buck is operated using various buttons and foot
pedals located at a control panel in the front of the machine; the control panel is opposite the 10
ironing/pressing mechanism. (Tr. 206, 232–33, 307, 310, 664–65, Tr. 643, 659–660, 1100,
1105–06, 1110; R. 19–21)
The various functions on the double buck are controlled by a pneumatic system
consisting of around 60 air-hoses running to various parts of the machine. The air-lines 15
themselves are small, about 1/8 inch in diameter, and at various points multiple air hoses run
through a larger tube or harness. Vacuum suction also is used on the machine to pull the shirt
tight to the torso form so it will be ironed smoothly. If the vacuum system is not working, the
double-buck will still operate, but the shirts will not be ironed properly as the shirt will not be
held in the proper position for pressing. (Tr. 207, 307, 311, 660, 666–68, 1106, 1108–1110; R. 20
20, 21)
Because of the working environment, the air hoses on the double buck machine become
brittle over time and develop leaks. There are two general ways to locate an air leak when they
develop, by sound/touch, or by using soapy water in a spray bottle. Respondent tries to repair air 25
leaks by using a coupling, which is a quick connector with a rubber seal that pins the hose in the
area of the leak. However, if a hose is too brittle a coupling will not hold. Because of the
machine’s configuration, when one or two hoses become too brittle, fail, or when multiple
couplings are needed on a hose, Respondent changes out all of the hoses on the machine. This
takes hours to complete and requires the machine to be shut down completely. Therefore, Apex 30
first tries to repair leaks with a coupling. (Tr. 209, 311, 662, 665–68, 913–15, 1108, 1111)
On September 13, Servin was called to work on a double-buck because the collar clamp
would not open. According to Servin, he checked the machine and realized that a faulty air hose
was causing the problem. To trace the exact location of the leak, he needed the air to continue 35
flowing through the hoses so he could hear or feel the leak. However, to try and hear the leak
Servin testified that he needed to turn the vacuum off, as the vacuum system is loud. (Tr. 206,
660, 1106–1108; R. 19)
According to Servin, each double-buck contains a switch for the vacuum to that particular 40
machine located at the operator’s control panel; the switch is easily accessible to anyone.
Therefore, he turned off the vacuum switch on the machine and was able to hear the leak. He
then used a coupling to stop the leak and get the machine working again. Servin said that all of
the air hoses on the double buck he worked on were brittle and needed replacing. Therefore, he
told the engineer who was coming on duty, named Ivan, to watch the machine because the hoses 45
could snap. (Tr. 1106–1111)
JD(SF)–13–20
60
According to Marsh, on September 13 he heard several calls coming over the radio that
the double-buck was down, so he went to investigate. When he arrived at the location, Marsh
testified that Servin and a utility engineer were troubleshooting the machine and had determined
a broken airline was preventing the collar clamp from working. At the time, Marsh believed that 5
Servin had a good game plan in place to fix the machine. Marsh testified that, at the end of
Servin’s shift, the two spoke briefly. Servin told him that he had returned the double-buck to
service and turned the machine over to the next engineer regarding the repairs that were made;
Servin then left for the day. Shortly thereafter, Marsh said that he continued getting calls that the
double-buck was not functioning. He went back to the floor and saw that the unit was not 10
working properly. According to Marsh, the coupling Servin fastened on the air hose had fallen
off, and the machine was returned to service without any vacuum power. Marsh claimed that the
vacuum had been turned off at the circuit breaker, which is located in the electrical panel about
20 feet away from the machine. (Tr. 205–209, 342; GC. 20)
15
Regarding the coupling, Marsh said that he actually saw the coupling had fallen off. As
for the vacuum being turned off at the circuit breaker, Marsh did not see this first-hand. Instead,
somebody told him the machine did not have vacuum pressure. Marsh testified that the vacuum
on the double-buck is turned on and off via a separate power system. When asked what Ivan did
to fix the machine, Marsh testified that he “believed” Ivan replaced the coupling, and then 20
tracked down the issue with the vacuum system. (Tr. 343) According to Marsh, Ivan was
working on the machine from 4:15 p.m. to 5:00 p.m., and during this time the machine was
inoperable. (Tr. 206–07, 342–43)
Although Sharron was not involved in this discipline, he testified generally about the 25
double-buck press. According to Sharron, air pressure to the machine’s hoses is on at all times,
“24/7.” (Tr. 661) Sharron said the double-buck does not have a separate switch at the operator’s
control panel to turn the vacuum on and off, nor is there a separate power system for the vacuum.
Instead, Sharron testified that the vacuum system comes on automatically when the main power
is turned on. Then, with the power on, the machine independently activates vacuum suction 30
when it is needed. Sharron also testified that, to deactivate just the vacuum, someone would
need to physically disconnect the vacuum power from the switch, as it cannot be turned on and
off, and turns on when the main power is activated. Finally, Sharron said that if power to the
double-buck was turned off at the circuit breaker, the air valves on the machine would not allow
air to travel through the pneumatic hoses, as the valves could not be turned on, even manually, in 35
such a scenario. (Tr. 660–63)
Marsh determined that Servin’s actions warranted discipline. He prepared a written
warning, which is dated September 14, for “substandard work/work slowdown.” According to
Marsh, the term “work slowdown” only meant that the machine was inoperable, causing a loss of 40
production. In the discipline Marsh wrote that Servin repaired an air-line on the double-buck,
informed Ivan of the repair, but later, dry cleaning called saying the equipment was not working.
According to Marsh’s narrative, Ivan found the original air leak needed further repair and that
the vacuum was left off at the breaker. The discipline also states that the equipment was
inoperable from 4:15 p.m. to 5:00 p.m., and that Servin needed to be better aware that all 45
JD(SF)–13–20
61
functions and energy sources were restored when returning equipment to service. The discipline
was not presented to Servin until September 18. (Tr. 210; GC. 20)
2. Analysis
5
Apex has not shown that it would have disciplined Servin for this incident absent his
union or protected conduct. Sharron specifically testified that employees would not be
disciplined for trying unsuccessfully to fix a machine, unless they tried to cover something up.
Here there was no coverup, but Servin was disciplined nonetheless. Shamrock Foods Co., 366
NLRB No. 107 slip op. at 1, fn. 1 (2018), enfd. 779 Fed.Appx. 752 (D.C. Cir. 2019) (per curium) 10
(disparate treatment where employer’s witnesses testified other employees made similar mistakes
but were not disciplined). If anything, the fact the coupling fell off was more a sign that the
hoses on the double-buck were too brittle and needed replacing, something Respondent puts off
until absolutely necessary, rather than indicating something was wrong with Servin’s repair.
Moreover, I do not credit Marsh’s testimony that Servin turned off the vacuum pressure on the 15
machine at the circuit breaker. This was not something that Marsh witnessed firsthand. And,
while the testimony from the various witnesses differed, Sharron testified that air pressure is
functioning on the double buck at all times, there is no separate power system for the vacuum on
the machine, and the vacuum on the double buck is turned on and off when the main power is
activated/deactivated. As Sharron was Respondent’s chief engineer, he surely knew how the 20
machine operated.
Also, as noted later in this decision, I have found that Respondent violated Section
8(a)(3) and (4) of the Act by holding engineers to a higher standard, and more strictly enforcing
work rules, after the CBA was signed. This further supports a finding that Respondent would not 25
have disciplined Servin for this incident absent his union and protected activities. Accordingly,
Respondent’s conduct violated Section 8(a)(3) and (4) of the Act.
I. Arellano’s Suspension and Termination
30
On September 18, 2018, Arellano was presented with two separate disciplines, one
concerning work he performed on a water valve on September 5, and another involving a piece
of equipment he turned off on September 12; he was also suspended. Arellano returned to work
on September 26 but was fired the next day. (GC. 17, 18, 21)
35
1. September 5, 2018 repair on a water valve
On September 5, Arellano was dispatched to inspect a water valve on press #1. The
valve would not shut off at the appropriate time, causing water to flow freely through the line.
Respondent was wasting water as a result. (Tr. 177, 882; R. 8 p. 2; GC. 17) 40
The defective part was a solenoid valve located on the side of a vertical hydraulic tank
that sat on top of a platform at the end of washing tunnel #1. A copper water pipe ran down one
side of the hydraulic tank and connected to a quarter-turn valve with red handle, which in turn
connected to a pvc hose. The pvc hose ran to the solenoid valve which was on the opposite side 45
of the hydraulic tank. Water flowed down the copper pipe, through the red-handled valve, to the
JD(SF)–13–20
62
pvc hose, and then through the hose to the solenoid valve. Inside the solenoid valve was a
disc/diaphragm which regulated the opening and closing of the valve and allowed water to flow
to a heat exchange unit at the appropriate interval. In the heat exchange unit the water cooled
hydraulic oil that circulated through the system; the hydraulic oil was necessary for the press to
function properly. The solenoid valve was connected to an electronic coil. When the coil was 5
energized the valve was supposed to open allowing water to flow through the valve. When it
was de-energized a plunger closed on the diaphragm stopping the water from flowing. (Tr. 714,
885, 989–996; R. 47, R. 48, R. 54)
To investigate the problem, Arellano turned the red-handled valve to the off position; this 10
stopped water from flowing through the copper pipe to the solenoid valve and on to the heat
exchange unit.46 He examined the solenoid valve and saw that the diaphragm was missing. Thus
the valve could not close; this was causing water to flow freely to the heat exchange unit instead
of at specific intervals as designed. (Tr. 177, 883–84, 988–991, 993–94; R. 48)
15
Arellano testified that he reported the matter to Sharron, telling him that water was
flowing freely, and they needed to replace the solenoid valve. According to Arellano, an exact
replacement part was not available, but Respondent had other, more expensive, solenoid valves
available that could have performed the same function. Arellano said that Sharron told him the
other valves were more expensive and were for other equipment, thus Apex would just order a 20
replacement part and change the solenoid valve when it arrived. According to Arellano, after
discussing the matter with Sharron, he picked up his tools and left for the day as his shift had
ended. When asked whether he turned the valve with the red handle back on before leaving,
Arellano testified that he could not remember. At the time he was working on the solenoid
valve, Respondent was between production shifts, so the machines were not working. (Tr. 178, 25
885–86, 996; R. 48)
Sharron denied that he spoke with Arellano that day. Instead, Sharron testified that he
came to work as Arellano was getting ready to leave; the two did not interact. According to
Sharron, the primary reason for Arellano’s discipline was because he did not turn the valve back30
on which resulted in the press overheating. However, at the hearing, when asked by
Respondent’s counsel to identify the specific valve that was turned off, causing the press to
overheat, Sharron testified that it was not the red-handled valve attached to the copper pipe.
Instead, Sharron said that Arellano was disciplined for turning off the main water valve, which
has a white handle, and is located on the other side of the tank. (Tr. 637–638, 712; R. 8, R. 17, 35
R. 48)
Sharron drafted the discipline that was ultimately given to Arellano over the water valve.
As for when he prepared the document, Sharron testified that he drafted it “[o]n 9/6/18, the day
that it happened.” (Tr. 1325) However, the document itself, as well as the accompanying work 40
order, states that Arellano inspected the solenoid valve on September 5. (Tr. 636, 1320, 1325; R.
8; GC. 17)
46 Arellano first identified the specific valve he closed during cross-examination by Respondent’s counsel. (Tr.
988–89) In fact, it was Respondent’s counsel who showed Arellano a picture of the valve and asked him if he
turned off the valve with the red handle to work on the solenoid valve; Arellano answered yes. (Tr. 988–89; R. 48)
JD(SF)–13–20
63
Marsh testified that he approved Arellano’s discipline, after speaking with Sharron and
reviewing the situation; Marsh was not onsite that day and did not witness any of the events
firsthand. According to Marsh, Arellano was asked to inspect the solenoid valve on press #1, as
it would not shut off after the cooling temperature had been reached, resulting in Respondent
wasting water. Arellano did this work between production shifts when the machines were not 5
operating. According to Marsh, Arellano shut down the unit and documented the required parts
that needed to be purchased but he did not turn the valve back on. Marsh identified the same
valve as Sharron, the main water valve, as the one that was turned off causing the machine to
overheat. Marsh testified that, about an hour after the next shift started production, the press
overheated resulting in the unit being shut down for an hour to allow the machine to cool down. 10
Although some production time was lost, the machine did not sustain any damage. Marsh stated
that when he asked Arellano what happened, with respect to the press overheating, and Arellano
told him “I guess I forgot a valve.” (Tr. 178) (Tr. 175–180, 187)
2. Rema Vac discipline15
The second discipline given to Arellano on September 18 involved his turning off the
power to a Rema Dry-Vac air vacuum (Rema Vac). Rema Vacs are used only in Respondent’s
dry-cleaning operation where steam is used to press out wrinkles. At the time, Respondent was
using Bay 7 to operate its commercial dry-cleaning business. Apex was starting a home dry 20
cleaning service and installed new dry-cleaning equipment in Bay 8 for this purpose, as well as
to assist with the commercial dry-cleaning overflow. The equipment in Bay 8 was installed by
AJ Industries, a company owned by Dramise, and Respondent’s engineers were not involved
with the installation. The equipment was brand new, and Apex had not yet started using it for
dry-cleaning work. (Tr. 190–94, 313, 642–43, 892–93, 997–99, 1002; GC. 18; R. 22) 25
The equipment installed in Bay 8 was similar to that which was already installed in Bay
7. Once operational both bays would have the same capabilities. Two new Rema Vacs were
installed in Bay 8, to correspond with the two that were already in Bay 7. (Tr. 313)
30
The primary purpose of a Rema Vac is to draw out steam used by the dry-cleaning
presses, discharging it through the exhaust system that vents via the roof. The Rema Vac looks
like a home water-heater tank but sits about two feet above the floor on a metal base. A copper
pipe attaches to the middle of the unit. This pipe runs to a manifold and ultimately attaches to
the various presses, providing a constant vacuum pressure. Each press also has a foot pedal 35
which opens a port allowing for additional vacuum pressure to remove the steam. The top of the
unit contains a black steel pipe that is used to vent the steam/warm air through the rooftop
exhaust. The lower half of the Rema Vac contains a 15-gallon tank that collects water from the
condensed steam that cannot be vented. At the bottom of the collection tank is a spigot with a
valve. On a daily basis engineers use the spigot to drain the tank into a utility bucket. (Tr. 191, 40
312–313, 896, 997–98; R. 22)
The Rema Vacs in Bay 8 were installed in such a way that they shared the same exhaust
system with those in Bay 7. Another third-party contractor installed the exhaust system, and
Respondent’s engineers were never informed that Bay 7 and Bay 8 shared an exhaust. These 45
were the only two bays at the plant that shared an exhaust system. (Tr. 194–195; 894–95)
JD(SF)–13–20
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At some point during the morning of September 12, Arellano walked by Bay 8 and saw
the Rema Vacs were running, even though dry cleaning production was not occurring.
Therefore, he turned the Bay 8 Rema Vacs off. For Arellano, turning off equipment that was not
being used conformed to Respondent’s longstanding practice. Apex expected employees to turn 5
off equipment that was not being used in order to save money, conserve energy, and protect the
machinery. (Tr. 192, 196, 644, 891–94, 897–98)
Later that morning, when dry cleaning employees started using the equipment in Bay 7,
all of the steam extracted from the Bay 7 Rema Vacs did not vent through the ceiling. Instead, 10
some of it traveled backwards through the joint exhaust system resulting in water/condensate
accumulating in the Bay 8 Rema Vacs. This would not have occurred if the Bay 8 Rema Vacs
were running, as pressure from the machines would have stopped the Bay 7 steam from
backflowing into Bay 8 via the joint exhaust; instead the steam would have vented through the
roof. For this reason, Marsh wanted the Rema Vacs in Bay 8 to remain running at all times. 15
Using Respondent’s iPads/tablets Marsh could have notified the engineers by email that he
wanted the Rema Vacs to stay on. He did not do so. Instead, the day before the incident
occurred, Marsh verbally told the day-shift engineers to leave the machines running. However,
because of Arellano’s schedule he had left for the day and was not present during this discussion.
Marsh also gave the swing shift engineers the same instructions and told them to inform the 20
graveyard shift accordingly. Marsh never told Arellano to keep the machines running but
expected that he would learn about the instructions by word of mouth. However, nobody ever
told Arellano. (Tr. 194–96, 330–31, 893–96, 999–1000)
The water backing up into the Bay 8 Rema Vacs did not cause any damage to the 25
machines, and there is no evidence that it caused a loss of production. Instead, the water was
drained from the machines and they were turned back on. (Tr. 330-31, 896, 1005)
3. September 18, 2018 disciplinary meeting
30
The disciplinary meeting on September 18 was held in Marsh’s office; present was
Marsh, Sharron, Arellano, and Servin. There were multiple disciplines presented to Arellano and
Servin, and the parties reviewed each discipline individually. Regarding the water valve, during
the meeting Marsh told Arellano that leaving the water valve off constituted substandard work.
Servin asked Marsh when the company started disciplining employees for substandard work, and 35
according to Arellano, Marsh had the CBA in front of him, looked at the date of the agreement,
and said as of July 20. Arellano testified that during the meeting Sharron said that another
engineer named Ivan was the one who said that the water valve was turned off, and that Ivan’s
work order would serve as his statement of what occurred. However, during his review of the
incident, Marsh looked for a work order from Ivan but never found one. (177–78) (Tr. 888–91, 40
1118, 1317, 1322; R. 8 #010248)
Regarding the Rema Vac, the disciplinary document is dated September 14 and states that
Arellano turned off both Bay 8 Rema Vacs at 4:38 a.m., which caused them to fill with
water/condensate from the Bay 7 dry cleaning operations. The document also states that 45
Arellano was suspended pending investigation, and that human resources would contact him as
JD(SF)–13–20
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to the outcome of the investigation. The document was signed on September 18 by both Marsh
and Arellano, with Arellano writing that he strongly disagreed, and further noting that he signed
the document under protest. (GC. 18)
During the September 18 meeting, Arellano said that he turned off the Rema Vacs5
because they were not being used. Marsh replied saying that he told the other shifts about
leaving the machines on, and that Arellano should have known because somebody should have
told him. Marsh testified that he watched the surveillance video and saw Arellano turn off the
machines and thought Arellano turned off them off because they were not in use.
Notwithstanding, during the September 18 meeting, Marsh told Arellano that he was suspended 10
until human resources could investigate and that Marsh would let him know of the outcome of
the investigation. (Tr. 196–97, 214–15, 899, 1112)
There was conflicting testimony as to why the parties did not meet until September 18
regarding the various disciplines. Marsh originally testified the delay was caused by scheduling 15
and trying to get everyone in the room at the same time. He then said he believed Sharron may
have requested that Servin and Arellano attend a meeting a week earlier, but they failed to show
up. However, he later admitted that, other than what Sharron may have told him, he did not
know whether Arellano or Servin were ever asked to attend any earlier meeting. Both Servin
and Arellano denied that they had ever failed to show up for a disciplinary meeting with Marsh. 20
As for Sharron, he testified that there were a couple of times that Respondent delayed issuing
discipline because they were waiting for both Arellano and Servin to be at work on the same day.
(Tr. 188–89, 647, 1100–01)
4. Respondent suspends and then discharges Arellano25
According to Marsh, Arellano’s suspension was only supposed to last for 3 working days.
However, time dragged on and Marsh did not hear anything regarding the investigation. Marsh
testified that he then sent an email saying he planned to bring Arellano back to work, and when
he did not get a response, contacted Arellano telling him to return to work on September 26. 30
Arellano worked a full day on September 26. That day, while Arellano was working, Marsh met
with Marty Martin and Joe Dramise to discussed Arellano. According to Marsh, during this
conversation it was determined that Arellano would be fired. Marsh testified that while he and
Marty Martin provided input during their discussions, it was Dramise who made the final
decision to fire Arellano. They had previously received input from Sharron, Respondent’s 35
human resources personnel, and the AdvanStaff team. According to Marsh, each of Arellano’s
previous disciplines were considered and formed the basis for his discharge. The next day,
Marsh said that Marty Martin and Dramise came to his office and told him that Arellano had to
be let go. Other than Servin, Walker, and Arellano, Marsh could not recall any other engineer
having ever been fired by the company. (Tr. 212–221, 338–39) 40
According to Marty Martin, the decision to both suspend and discharge Arellano was
made by himself, Marsh, Sharron, and Dramise; it was a joint decision. And the decision was
based upon the various behaviors outlined in Arellano’s previous disciplines. According to
Marty Martin, Arellano engaged in repeated incidents of misconduct, and they did not believe it 45
was going to get any better. (Tr. 406–08)
JD(SF)–13–20
66
Dramise denied that he participated in the decision to terminate Arellano. According to
Dramise, he received a call from either Marsh or Sharron who alerted him to the situation, and
his only instructions were to make sure they followed the guidelines laid out in the CBA.
Regarding both Arellano and Servin, Dramise testified that they caused the company a great 5
level of frustration. According to Dramise, Arellano and Servin used to be good employees
“until this union thing happened, and they decided to go rogue.” (Tr. 465) Dramise testified that
he had no explanation for their conduct, other than the Union, saying “I had two good employees
that all of the sudden became bad actors, bad players, and created a lot of problems in the
Company.” (Tr. 465) (Tr. 451–53) 10
On September 19, Dramise sent an email to the Union in which he specifically discussed
both Arellano and Servin. The email was part of a string of emails relating to an information
requests the Union had made, along with other issues. In the email, Dramise wrote, in reference
to Arellano and Servin, that a significant amount of time was being spent “dealing with a few 15
individuals that do not want to honor the contract.” (GC. 5 p. 3) He further wrote that “[j]ust
have them do their job, that’s all we want. They seem to be embolden[ed] to not do their job and
always looking for ways to give Apex trouble.” Id. (emphasis in original) Dramise further
complained that whenever Respondent disciplined Servin and/or Arellano the Union filed
grievances, pursuant to the CBA. He further wrote that “[t]his is a never ending cycle and I 20
don’t know where this ends but I’m losing my patients [sic] on this process.” Id; (Tr. 462) For
Arellano, the process ended with his termination on September 27.
On September 27, Marsh called Arellano into his office and told him that he was fired.
Servin was also present along with another official from the company. During the meeting, 25
Marsh told Arellano that he was being fired for poor workmanship. Marsh gave Arellano his
termination notice which states that he was being fired for violating company policy, citing the
following sections of the employee handbook: Section 5-1-5 (Violation of safety rules and
policies), Section 5-1-14 (Willful or careless destruction or damage to company assets or to the
equipment or possessions of another employee), and Section 5-1-20 (Unsatisfactory job 30
performance). The document also cites Article 13.01 of the CBA, which is the section of the
contract covering discipline and discharge. (Tr. 213, 916, 919; GC. 3, GC. 21; R. 3)
5. Analysis
35
Respondent has not rebutted the General Counsel’s prima facie case to show that it would
have disciplined, suspended, and discharged Arellano absent his union and other protected
conduct. Regarding the water valve incident, Respondent claimed the unit overheated because
the main water valve (with the white handle) was shut. However, there is no evidence Arellano
did anything to the main water valve. Instead, when working on the solenoid he turned off 40
another valve, one with a red handle, which was never implicated in the machine’s overheating.
Olathe Healthcare Center, Inc., 314 NLRB 54, 54 (1994) (Employer failed to meet its Wright
Line burden where no competent, credible evidence was presented that employee had engaged in
wrongdoing, or that it had a good-faith belief the employee was engaged in misconduct). Also,
Respondent never took a written statement from Ivan regarding what occurred, and Marsh said 45
that Ivan’s work order would serve as his written statement, however no such work order existed.
JD(SF)–13–20
67
Aliante Gaming, LLC, 364 NLRB No. 78, slip op. at 13 (2016) (sham investigation where
employer failed to obtain written statements from other employees present when the incident
occurred).
Regardless of whether Arellano was, or was not, ultimately responsible for turning off the 5
main water valve, even assuming he was, Respondent has not established that it would have
disciplined Arellano absent his protected activity. Rhino Northwest, LLC, 369 NLRB No. 25,
slip op. at 3 (2020) (italics in original). Marsh told Arellano and Servin that Apex started
disciplining engineers for substandard work as of July 20, the effective date of the CBA. And,
Sharron told Arellano that he was not going to discipline him for the water valve but was getting 10
pressure from his bosses to do so. I have found below that Respondent violated Section 8(a)(3)
and (4) by holding employees to a higher standard and more strictly enforcing work rules
because of their protected activities, and this is an example of Respondent doing so.
As for the discipline involving the Rema Vacs, the circumstances clearly support a 15
finding of unlawful motive. When Arellano turned off the Bay 8 Rema Vacs he was following
Respondent’s established protocol of turning off equipment that was not being used in order to
save money, conserve energy, and protect the machinery. Marsh admitted that this was
Respondent’s established practice. (Tr. 196) Neither Marsh, nor anyone else, informed Arellano
that the Rema Vacs in Bay 8 were to be left on, Respondent’s engineers did not install machines, 20
and were never told that the Rema Vacs in Bays 7 and 8 shared an exhaust system. Under these
circumstances blaming Arellano for turning off the machines, when he was following
Respondent’s established procedures, is evidence that Apex’s true motives were unlawful. Cf.
Master Security Services, 270 NLRB 543, 551 (1984) (Pretext where employer disciplined
guard, in part, for not knowing what certain keys were used for when employer never provided 25
the guard with training or instructions regarding the keys.)
The same is true regarding the discharge. Marty Martin and Marsh stated that the
decision to fire Arellano was based upon his previous disciplines, which I found were unlawfully
issued. Board law is clear, when an employer disciplines an employee based on prior disciplines 30
that were unlawful, “any further progressive discipline based in whole or in part thereon must
itself be unlawful.” The Hays Corp., 334 NLRB 48, 50 (2001); see also NLRB v. RELCO
Locomotives, Inc., 734 F.3d 764, 787 (8th Cir. 2013) (“An adverse employment decision is
unlawful if it relies upon and results from a previous unlawful action.”). Accordingly, on this
basis alone, Respondent’s decision to fire Arellano based, at least in part, on his previous 35
disciplines, is a violation.
Moreover, Respondent’s inconsistent testimony as to who made the decision to fire
Arellano is indicative of unlawful motive. See Maywood, Inc., 251 NLRB 979, 993-994 (1980)
(inconsistent testimony from company witnesses as to who made decision to discharge employee 40
and the reason for the discharge is evidence of pretext to hide the real reason, advocacy for the
union); Cf. Planned Building Services, Inc., 347 NLRB 670, 713–15 (2006) (in a refusal-to-hire
case, inconsistent testimony as to who made decision to not hire employees supports a finding of
pretext). Marty Martin testified that the decision to fire Arellano was a joint decision involving
himself, Sharron, Marsh, and Dramise. Marsh testified that, while others had input, the ultimate 45
decision was made by Dramise. For his part, Dramise denied any involvement in the decision,
JD(SF)–13–20
68
saying that he was only alerted to the situation and he told his subordinates to make sure they
followed the CBA guidelines. I find the entire testimony from Respondent’s officials regarding
the decision-making process, and the reasoning for the discharge, to be a charade.
Sharron had previously stated that the CBA would be used against employees to get them 5
fired, by disciplining them and three strikes “one, two, three, you’re done, down the road.” (Tr.
1178) And Respondent’s management team was clearly targeting both Servin and Arellano, with
Dramise saying that, other than the Union, he could not explain why “two good employees all of
a sudden became bad actors, bad players, and created a lot of problems in the Company.” (Tr.
465) Knoxville Distribution Co., 298 NLRB 688, 688 (1990), enfd. 919 F.2d. 141 (6th Cir. 10
1990) (employer’s speech, made the same day three employees were reinstated following their
unlawful discharge, saying the company “did not need ‘troublemakers,’ evidenced the
Respondent’s continuing anti-union animus towards the employees); Ramada Inn, 172 NLRB
248, 251 (1968) (referring to employee as “troublemaker” evidence of unlawful motive); United
Parcel Service, 340 NLRB 776, 777 (2003) (saying employee was “troublemaker” because of his 15
involvement in filing grievances is evidence of animus). Marsh stated that Respondent only
started disciplining employees for poor workmanship after the CBA, and it is clear that
Respondent was looking for any excuse to write up Arellano and Servin “one, two, three, you’re
done, down the road.”47 (Tr. 1178) Under the facts presented, Respondent has failed to show by
the preponderance of the evidence that it would have disciplined, suspended, and discharged 20
Arellano absent his union and other protected activities. Accordingly, Respondent’s actions
against him violated Section 8(a)(3) and (4) of the Act.
J. Servin’s December 18, 2018 Discharge
25
1. Background
On December 18, 2018, Respondent discharged Servin. There was no written warning,
or oral discipline given to Servin that precipitated his discharge. Instead, he was called into a
conference room on December 18, and given an employee termination form, which was 30
completed by Marsh, saying he was fired because his performance was below standard. The
termination form contains a box asking whether written or verbal warnings were given, and if so,
states that they should be attached to the form. Marsh checked “yes” in the box, but no such
documents were attached to the termination form. And, other than the previous disciplines
outlined herein, no new disciplines were introduced into evidence. The document further states 35
that Servin would not be recommended for rehire. (Tr. 221–23, 1119; GC. 22)
As for his termination, Servin testified that on December 18 he was working when Marsh
brought him into a conference room near the company offices. Present in the room was Servin,
Marsh, and Marty Martin. Marty Martin presented him with the discharge paperwork saying that 40
he was being terminated for a lack of productivity and not answering floor calls. According to
Servin, Respondent did not have a specific standard regarding answering floor calls, so during
the meeting he asked Marty Martin what the standard was; Martin replied saying there was no
47 I find this to be a more credible reason as to why Respondent waited almost two weeks to issue Arellano a
discipline for the water valve incident. Respondent waited in order to pile on consecutive disciplines to fulfill
Sharron’s prediction, three strikes “one, two, three, you’re down the road.” (Tr. 1178)
JD(SF)–13–20
69
standard. Servin then asked how he could be below standard if Respondent did not have a
standard. However, before Martin could answer, Marsh cut him off saying that was not what
Martin said. (Tr. 1120) Servin replied saying that was exactly what Martin had said but was told
by Marsh they were not going to discuss the matter any further. Servin then turned in his
belongings. (Tr. 1118–1120) 5
Regarding Servin’s discharge, Marsh testified he was the one who drafted the termination
notice, and that Servin was fired for poor performance. When asked who made the decision to
fire Servin, Marsh testified that it was a “conversation” between himself, Dramise, Marty Martin
and Sharron. However, it was Dramise who had the final say. (Tr. 221–22; GC. 22) 10
According to Marsh, there were several incidents which happened in preceding the 4–5
days that culminated in Servin’s discharge. Marsh said that Marty Martin brought these
incidents to his attention, which included repairs taking longer than expected and equipment
downtime which affected production. According to Marsh, a review then determined that 15
Servin’s workmanship was in question and after reviewing Servin’s previous write-ups, his
findings were brought to the group and it was determined that Servin would be fired. In deciding
that termination was appropriate, Respondent took into consideration each of Servin’s previous
disciplinary actions. (Tr. 222–23, 339)
20
To examine Servin’s work during the week before he was fired, Marsh said that he
reviewed 15–20 work orders, and video if it was available. Marsh thought Servin’s repairs
seemed to be taking longer than was necessary. He also testified that he made notes of his
review and attached them to Servin’s termination form in his files. That being said, no such
notes or other documentation are attached to the termination form, nor were they otherwise 25
introduced into evidence. Finally, Marsh confirmed that Respondent does not have a formal
standard regarding how long various repairs are supposed to take. (Tr. 223, 225; GC. 22)
Marty Martin testified that he was present the day Servin was fired. According to Martin,
Servin’s discharge was based upon a number of incidents, including the conduct outlined in 30
Servin’s previous disciplines. Martin said that Servin was dragging out repairs, made some
serious mistakes that caused excessive downtime, Marsh and Sharron were reporting Servin was
not up to standards, and that he was not trying to improve. (Tr. 408–410)
Dramise testified that, while he was aware Servin was fired, his involvement in the 35
decision was limited to general phone calls with Marsh and Sharron where they told him what
was happening, as opposed to asking him for permission to fire Servin. According to Dramise,
he does not get into much detail regarding disciplinary matters but leaves the decision up to his
managers and tells them to follow the procedures set forth in the CBA. As with Arellano,
Dramise was frustrated with Servin and believed that he was once a good employee “until this 40
union thing happened” and he decided to “go rogue” along with Arellano. Other than the union
drive, Dramise had no explanation for the conduct of Servin and Arellano saying that he “had
two good employees that all of the sudden became bad actors, bad players, and created a lot of
problems in the Company.” (Tr. 465) Dramise was also frustrated the Union filed grievances
whenever Respondent disciplined Arellano and Servin, he thought it was a never-ending cycle 45
and was losing his patience with the process. (Tr. 455, 457, 464–465; GC. 5 p 3)
JD(SF)–13–20
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2. Engineer work statistics
In 2018 Apex had a practice of tracking the work completed by engineers during their
shifts and posting those statistics. The General Counsel introduced into evidence two sets of 5
documents from Apex’s records ranking the engineers for August and September of 2018. These
documents ranked the engineers in terms of total work orders completed and total labor hours
entered. In both sets of documents, the top three engineers in each category appear in red font
and at the bottom of the page the word “LEADERS” is also listed in red font. The remaining
engineers are listed in black font. According to Marsh, these documents were created, compiled, 10
and posted by John Robinson (“Robinson”), who manages Respondent’s maintenance program.
Robinson stopped posting the documents in October 2018. (Tr. 227–28, 1220–21; GC. 23, 53)
The first set of documents are titled “Work Order Leaders” and list the total work orders
completed (both scheduled and unscheduled). In August 2018 Servin was second, with 203 total 15
work orders completed for the month. The engineer in first place completed 212 total work
orders and the one in last place completed 63. In September 2018 Servin was in first place with
232 total work orders completed. The engineer in second place completed 210 work orders
while the one in last place completed 81. (GC. 53)
20
The second set of documents are titled “Labor Leaders.” These list the total labor hours
entered for each engineer. In August 2018 Servin was in fourth place, with 134.62 total labor
hours. The engineer in first place had 170.19 labor hours for the month, while the two engineers
with the least amount of labor hours worked had 77.07 and 24.50 hours respectively. Two
engineers have an asterisk next to their names and their work hours. (GC. 53) At the bottom of 25
the document it states that the asterisk represents employees who had multiple dates listed with
more labor hours entered than hours worked. In September 2018 Servin is listed sixth, with
101.22 total labor hours entered. The labor hours for the remaining engineers below Servin
ranged from 78.48 to 24.50 labor hours. The engineer in first place had 138.89 total labor hours.
One employee is listed with an asterisk next to his name for September, and the document 30
similarly states that the asterisk represents someone who has multiple dates listed with more
labor hours entered than hours worked. (GC. 53)
Regarding these documents, Servin testified that they were posted on a bulletin board in
the tool room. Servin said that each engineer has a set of preventative maintenance “PM” tasks, 35
which they are assigned on a weekly basis, such as greasing and cleaning machines. They also
receive unscheduled work calls during their shift. Thus, the document titled “Work Order
Leaders” tallies the number of both scheduled and unscheduled projects each engineer completed
for the month. Regarding the document titled “Labor Leaders,” Servin testified that each
engineer enters into his iPad/tablet the time it takes to complete a task, including both scheduled 40
and unscheduled work orders. The software then adds up the total number of hours worked per
engineer, and these numbers are then posted. (Tr. 1120, 1123–24, 1038)
According to Servin, after the September 2018 numbers were posted, which ranked him
first in total work orders completed, Robinson shook his hand and told him that he was doing a 45
really good job. Servin testified that, more than once, Robinson had told him that being at the
JD(SF)–13–20
71
top of both lists is viewed as a positive attribute by Apex. Regarding the asterisks on the
documents, Servin testified that Robinson had explained to the engineers that the asterisks
represent employees who had entered more labor hours for their projects than the actual number
of hours they had worked. Finally, Servin said that, between the time the last statistics were
posted, and his discharge in December, his work performance had not changed in any way. (Tr. 5
1125–1131)
Regarding the rankings, Marsh testified that, notwithstanding what the documents said,
the names listed in red font signify that those employees either worked more hours than was
physically possible or there were discrepancies in the raw data used. Marsh claimed that he got 10
this information from speaking with Robinson. However, when it was noted that the asterisks on
the documents actually denote the engineers who had more labor hours entered than hours
worked, Marsh said that these were not his reports, but were Robinson’s and it would be up to
Robinson to explain what they meant in detail. Finally, regarding Servin’s productivity, Marsh
testified that he did not review anything that showed Servin’s productivity had fallen 15
dramatically in December 2018. (Tr. 229, 1221, 1257–58)
3. Analysis
The evidence shows that Servin’s discharge was unlawful. His union and protected 20
activity is well documented, as is Respondent’s knowledge and animus. And, Apex has not
shown by a preponderance of the evidence that Servin would have been fired absent his
protected activity.
Respondent’s claims that Servin was fired because his performance was below standard 25
is refuted by the fact he was at or near the top of the engineer work statistics for the months of
August and September, and Marsh’s testimony that he did not review anything that showed
Servin’s productivity had fallen dramatically in December 2018. Any testimony by Marsh trying
to diminish the importance of Respondent’s statistical reports, by claiming there were
discrepancies in the raw data because Servin’s name is listed in red, is belied by the documents 30
themselves. The plain reading of the documents show that the names listed in red delineated the
workplace leaders in those categories. Indeed, when Servin ranked first in September he was
even congratulated by the Apex official who was responsible for tracking the data. This is just
another example of Marsh trying to tailor his testimony to support Respondent’s case,
notwithstanding what the actual evidence showed.35
Similarly not credible are claims by Marsh and Marty Martin that Servin was dragging
out repairs, making serious mistakes, taking too much time, or that his work was not up to
standard. Between his September disciplines, which I found to have been issued unlawfully, and
his December termination, Servin did not receive any other discipline, nor is there evidence that 40
his work was substandard. Instead, when his work was being tracked, he finished at or near the
top of the rankings.
Marsh’s testimony that there were several incidents that occurred in the days preceding
Servin’s discharge is also unworthy of belief. Marsh claimed to have reviewed 15-20 work 45
orders, and video, which showed that Servin’s repairs seemed to be taking longer than necessary,
JD(SF)–13–20
72
and said he made notes of his review and attached them to Servin’s termination form. However,
no such notes were attached to Servin’s termination form, nor were they independently
introduced into evidence. Neither were any such work orders or videos introduced into evidence.
Therefore, I find that either no such notes or documents/videos showing deficiencies ever
existed, or if they did exist, they were unfavorable to Respondent’s case. See Auto Workers v. 5
NLRB, 459 F.2d 1329, 1336 (D.C. Cir. 1972) (“[W]hen a party has relevant evidence within his
control which he fails to produce, that failure gives rise to an inference that the evidence is
unfavorable to him.”); Michael Cetta, Inc. d/b/a Sparks Restaurant, 366 NLRB No. 97, slip op.
at 10 (2018) (“An adverse inference may also be drawn based upon a party’s failure to introduce
into evidence documents containing information directly bearing on a material issue.”). 10
Respondent’s inconsistent testimony as to who made the final decision to discharge
Servin is also evidence of an unlawful motive. See Maywood, Inc., 251 NLRB 979, 993-994
(1980); Cf. Planned Building Services, Inc., 347 NLRB 670, 713-15 (2006). Marsh testified that
Dramise had the final say in the discharge, while Dramise, who was frustrated with the Union’s 15
grievances and labelled Servin and Arellano as “bad actors” who went “rogue” after the
engineers unionized, testified that he leaves those decisions up to his managers.
Finally, the fact that Respondent relied upon Servin’s past disciplines, which I have
found to be violations, is also evidence of the unlawful nature of Servin’s discharge. The Hays 20
Corp., 334 NLRB 48, 50 (2001); NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 787 (8th Cir.
2013). As such, I find that Respondent has not shown by a preponderance of the evidence that it
would have discharged Servin absent his union and other protected activities, and by terminating
his employment Respondent violated Section 8(a)(3) and (4) of the Act.
25
K. Changes in Disciplinary Practices were Unlawfully Motivated
Complaint paragraph 6(n) alleges that Respondent changed its disciplinary practices, in
violation of Section 8(a)(3) and (4) of the Act. Specifically, the General Counsel asserts that
Apex started disciplining engineers for safety violations and substandard work only after the 30
collective-bargaining agreement was executed. Id. (GC. Br. at 51)
It is well established that an employer violates the Act when it increases discipline among
its employees in response to their engaging in union or other protected activities. Jennie-O
Foods, 301 NLRB 305, 311 (1991). If the General Counsel shows that the pattern of discipline 35
after the commencement of union activity deviated from the pattern of discipline prior to the start
of union activity, a prima facie case of discriminatory motive is established, and the Respondent
is then required to show that its increased discipline was motivated by considerations unrelated
to employee union activities. Id. (citing Keller Manufacturing Co., 237 NLRB 712 fn. 7 (1978))
“The issuance of warnings pursuant to stricter enforcement constitutes a further violation of . . . 40
the Act.” Id. (citing Dynamics Corp. of America, 286 NLRB 921, 921 (1987)).
Here, the credited evidence supports a finding that Respondent did, in fact, change its
practice and more stringently enforced its work rules to target employees because of their union
activities. For example, a few weeks before the CBA was signed, and during the general 45
timeframe that the Union was arranging for a ratification vote, Sharron told Walker that he was
JD(SF)–13–20
73
going to use the engineers’ own CBA against them to get them fired. He said to Walker that
there was nothing in the contract saying he could not write-up employees, and “one, two, three,
you’re down the road.” (Tr. 1117)
When Respondent held a mandatory meeting for all engineers on August 15, 2018, Marsh 5
testified the purpose of the meeting was to bring the staff together and give them a heads up that
Respondent had signed a CBA with the Union, and that the previous rules of engagement were
changing; they were operating under new rules. (Tr. 116, 118) He also told them, among other
things, the department had been slacking. At the same time, Sharron told the engineers that the
meeting constituted their first and final verbal warning and that if they did not meet expectations 10
he was going to start writing-up the engineers. (Tr. 802–04) When questioned about his
comments, Sharron doubled down, saying again that the engineers would be written-up if they
did not meet expectations, because the engineers now had a contract, were well paid, and “so we
have a higher standard for you guys.” (Tr. 803)
15
At the hearing, when asked whether Respondent issued disciplines for safety violations
prior to the collective-bargaining agreement, Marsh said that he could not recall any such
disciplines. (Tr. 162–63) The only incident, before the CBA, he could remember that came
close to a discipline was one in which two individuals were hoisting each other up with a forklift.
However, those two employees were “spoken to about the proper use of [a] forklift” and nothing 20
was documented in their work record. (Tr. 163) Arellano, on the other hand, was given a
written warning for a safety violation involving the Weightanka about three weeks after the CBA
was signed. (GC. 13) Moreover, during Arellano’s disciplinary meeting on August 16, 2018,
Marsh was asked when Respondent started disciplining employees for working on the roof; he
looked up an email on his computer and said as of July 30. (Tr. 859–60) During the September 25
18, 2018 disciplinary meeting involving both Servin and Arellano, when asked when the
company started disciplining employees for substandard work, Marsh looked at the date of the
CBA, and told them as of July 20. (Tr. 888–89, 1118; R. 8 #010248)
In sum, I believe that the credited evidence establishes a prima-facie case showing show 30
that, after the CBA was negotiated with the Union, Respondent started holding engineers to a
higher standard than before, and more strictly enforced its work rules; this increase was based, at
least in part, on employee union activities generally, and the new CBA specifically. As further
discussed above in the sections involving the individual disciplines issued to Arellano and
Servin, Respondent did not show that it was motivated by considerations unrelated to employee 35
protected activities. Id. Accordingly, I find that Respondent violated Section 8(a)(3) and (4) of
the Act by holding employees to a higher standard and more strictly enforcing its work rules
because of their union and other protected activities.
IV. THE ALLEGED 8(a)(5) UNILATERAL CHANGES40
A. The Changes in Disciplinary Practices
After the hearing in this matter closed, the Board issued its decision in MV
Transportation, Inc., 368 NLRB No. 66 (2019) adopting a “contract coverage” standard when 45
deciding whether a collective-bargaining agreement grants an employer the right to take certain
JD(SF)–13–20
74
actions unilaterally, without bargaining with the union. The Board applied this standard
retroactively in all pending cases. Id., slip op. at 2. Accordingly, it applies here.
Under the contract coverage approach, the Board examines the “plain language of the
collective-bargaining agreement to determine whether the action taken by an employer was 5
within the compass or scope of contractual language granting the employer the right to act
unilaterally.” Id. The contract language does not need to specifically address the decision at
issue, as “a collective bargaining agreement establishes principles to govern a myriad of fact
patterns.” Id., slip op. at 11 (internal quotation omitted). Instead, “[w]here contract language
covers the act in question, the agreement will have authorized the employer to make the disputed 10
change unilaterally, and the employer will not have violated Section 8(a)(5).” Id. For example,
in MV Transportation the Board stated “if an agreement contains a provision that broadly grants
the employer the right to implement new rules and policies and to revise existing ones, the
employer would not violate Section 8(a)(5) and (1) by . . . revising existing disciplinary . . .
policies.” Id., slip op. at 2. That is precisely the situation presented here. 15
Section 12.01 of the CBA generally gives Respondent the right to implement, establish,
and enforce rules of conduct, discipline employees, and determine the level of discipline. (GC.
3, p. 26) Therefore, notwithstanding the fact Respondent may not have disciplined employees
for safety violations or substandard work before the CBA was signed in July 2018, pursuant to 20
the language of the agreement Respondent retained the right to revise its existing disciplinary
policies. For this allegation, the General Counsel relies exclusively upon conduct that occurred
after the CBA was signed. And, pursuant to the plain reading of the CBA, the contract language
covers Respondent’s right to revise existing disciplinary policies without negotiating with the
Union. Therefore, under these circumstances, I recommend this allegation be dismissed. 25
B. The Change in Charles Walker’s Job Classification
1. Facts
30
Prior to the signing of the CBA, Apex had the following classifications for engineers:
apprentice/utility; B-level engineer; and A-level engineer. Respondent’s highest skilled
mechanic was an A-level engineer, who possessed the skills to complete all necessary repairs in
the facility and could handle an entire shift on his own. The B-level engineer classification was
used for someone who was capable of overseeing a specific project, and could complete some of 35
the larger repairs individually, but was not quite at the skill level necessary to oversee an entire
shift by themselves. Thus, a B-level engineer always worked with another engineer during a
shift. Entry-level engineering employees were categorized as an apprentice/utility engineer.
They assisted the other engineers and performed most of the “grunt work” around the laundry.
(Tr. 235, 525)40
Before he was unlawfully laid-off in February 2017, Walker worked as a B-level
engineer; he was reinstated into this classification pursuant to the District Court’s 2018
injunction order. Walker has worked as an engineer, maintaining and repairing equipment, for
his entire professional career, and started working at Apex in 2015. Respondent’s classification 45
system for engineers did not fit the Union’s general system, which used only two classifications:
JD(SF)–13–20
75
apprentice and engineer. When the parties started bargaining for an initial CBA, Walker was
Respondent’s only B-level engineer. (438, 472, 521, 524–25, 530, 1180-81; GC. 24)
The CBA executed by the parties generally adopted the Union’s two category approach.
Under the CBA engineers were classified as either a “utility engineer” or a “maintenance 5
engineer.” The maintenance engineer classification appears to be the equivalent of Respondent’s
previous A-level engineer designation. The CBA describes the utility engineer position as
“strictly a trainee classification;” it is reserved for someone who works under the immediate
supervision of a maintenance engineer or the chief engineer. At the time the CBA was signed,
the salary for a maintenance engineer was $33.00 per hour and a utility engineer was paid $21.45 10
per hour. (Tr. 237; GC. 3 p. 35)
Once the CBA was finalized, Respondent’s engineers had to be recategorized into the
two classifications called for in the agreement. Generally, Respondent’s existing
apprentice/utility engineers were put into the utility category, and everyone else was designated 15
as a maintenance engineer. However, a dispute arose regarding Walker. Prior to the signing of
the CBA, as a B-level engineer Walker’s pay rate was $25.00 per hour. If Walker was classified
as a utility engineer, he would receive a cut in pay of $3.65 per hour and be required to work in a
trainee classification. If he was classified as a maintenance engineer, Walker would receive a
raise of $8.00 per hour, but he would have greater responsibilities and be required to work 20
unsupervised. Walker was ultimately classified as a maintenance engineer. (Tr. 23, 237–38,
351, 522, 530)
There was various testimony, some of which was contradictory and convoluted, as to
what occurred during bargaining and the related conversations over Walker’s reclassification. 25
That being said, the following is firmly established by the documents introduced into evidence
and the corresponding credited testimony. It is clear that the parties discussed Walker’s status
during bargaining for an initial CBA, but it does not appear that any definitive agreement was
ever reached between the Union and Dramise, who everyone acknowledges had taken over
Respondent’s bargaining obligations, and with whom a final agreement was ultimately reached. 30
During bargaining the Union wanted Walker to be reclassified into the less-skilled utility
classification, while Dramise wanted Walker classified as a maintenance engineer. At one point
in their discussions, Dramise proposed having the Union test all of Respondent’s engineers, since
the Union had a training program, in order to determine everyone’s skill level and classify them
accordingly. However, the Union did not agree to Dramise’s proposal. (Tr. 439, 552; GC. 5) 35
When bargaining between Dramise and the Union ended, no agreement had been reached
regarding Walker’s final classification. (Tr. 438–39, 441-42, 524–25, 529, 552)
On July 9, 2018, 11 days before the CBA was signed, Ed Martin sent an email to Marty
Martin asking for a list of unit members, their job classification, and seniority date. The Union 40
was seeking this information in order to set up a ratification vote for the contract. Marty Martin
replied the same day with a list of 12 engineers; five utility engineers and seven maintenance
engineers. On the list supplied by Marty Martin, Walker was listed as a utility engineer.
According to Ed Martin, sometime later that month, on either July 19, 20, or 29, he had a
discussion with Marty Martin where he agreed that Walker would “come on” as a utility 45
engineer for purposes of bidding new shifts. Ed Martin testified that, as of the date he had this
JD(SF)–13–20
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discussion with Marty Martin, the CBA had already been finalized. (Tr. 352–53, 475–77, 517;
GC. 24)
At some point after the Union’s discussion with Marty Martin, but before new shift
bidding commenced, Dramise intervened and promoted Walker from a utility engineer to a 5
maintenance engineer. Sometime during the last week of July or early August, Walker told Ed
Martin that Respondent had changed his position to that of a maintenance engineer, saying that
his paycheck had increased, and Apex was assigning him maintenance engineer job duties. (Tr.
479-80) After learning this information, Ed Martin spoke with Marty Martin who told him that,
according to Dramise, the ALJ decision (seemingly referring to the Sotolongo decision) made the 10
company reinstate Walker as a maintenance engineer and that he was going to remain in that
position. (Tr. 481, 483; GC. 2)
A number of weeks passed until the issue again resurfaced. On September 17–18, 2018,
Marsh and Ed Martin exchanged emails where the issue of bargaining unit seniority was 15
discussed. During the exchange, Ed Martin wrote that, when the contract was signed he had
reached an agreement with Marty Martin to classify Walker as a utility engineer but at some
point Respondent changed Walker’s classification to that of a maintenance engineer without
giving the Union notice or an opportunity to bargain. Marsh replied saying that Respondent
reinstated Walker pursuant to the District Court Order to the B-level engineer position and when 20
the contract was signed Walker was promoted to maintenance engineer along with another
employee. Ed Martin argued that Respondent was obligated to bargain any change over
Walker’s classification/pay with the Union, and again cited his agreement with Marty Martin that
Walker would be classified as a utility engineer. Marsh ended the exchange with an email on
September 18. In the email, Marsh wrote that he had spoken with Dramise who said he had final 25
approval regarding the CBA, that the Union refused his request to test all the engineers to
examine their skillsets, and while they had discussions about Walker’s ability to handle the
requirements of being a maintenance engineer, Dramise did not have anything saying that
Walker was going to have his job classification lowered to that of a utility engineer. (GC. 2)
30
The next day, on September 19, Ed Martin sent an email directly to Dramise. In the
email, among other things, Ed Martin asked Dramise to “abide by the agreement reached with
Marty [Martin] on Charlie Walker’s classification after the contract was signed.” Dramise
replied saying that the Union disagreed with his request to test the skills of all the engineers and
therefore Respondent classified Walker as a maintenance engineer. (GC. 5) 35
A few more weeks passed and the issue of Walker’s classification again emerged when
the engineers were planning to bid on new shifts. Ed Martin admitted he told Marsh that Walker
could bid on whatever shift he wanted–as either a utility engineer or maintenance engineer–and
then it was Respondent’s responsibility to award the shifts accordingly based upon the 40
company’s judgment of whether the Walker was qualified. Similarly, Marty Martin testified that
during the shift bidding process Ed Martin told him that it was up to Walker as to whether he
wanted to bid into a utility engineer position or a maintenance engineer position. When the shift-
bidding opened in October 2018, Walker bid for a shift as a maintenance engineer, working from
3:00 p.m. to 11:00 p.m. He was awarded the bid. (Tr. 354, 485–86; R. 2) 45
JD(SF)–13–20
77
2. Analysis
The Government asserts that Respondent violated Section 8(a)(5) and (1) of the Act by
classifying Walker as a maintenance engineer, as opposed to a utility engineer, without prior
notice to the Union and without affording the Union an opportunity to bargain At trial, the 5
General Counsel stated it was the Government’s position that Walker’s change in classification
to a maintenance engineer was something that was discussed during collective-bargaining but not
agreed upon, and therefore constituted a violation. (Tr. 239–40)
However, the credited evidence shows that Walker was not promoted to a maintenance 10
engineer until after the CBA was put into effect. And, the CBA contains a management-rights
clause that allows Respondent to promote employees. Specifically, Section 12.01 of the CBA
reads, in part, as follows:
Rights to Manage. Except as expressly modified or restricted by a specified 15
provision of the Agreement, all statuary and inherent managerial rights,
prerogatives, and functions are retained and vested exclusively in the Employer,
including but not limited to, the rights, in accordance with its sole and exclusive
judgment and discretion: to determine the number of employees to be employed;
to hire employees, determine their qualifications and assign and direct their work; 20
to formulate, implement and enforce rules of conduct; to promote, demote,
transfer, lay-off, recall to work, and retire employees.
As such, after the CBA was in effect, Respondent retained the right under the management-rights
clause to determine the qualifications of the engineers and promote them, which is what Dramise 25
did here. Cf Quality Health Service of Puerto Rico, 356 NLRB 699, 702 (2011) (hospital’s
unilateral requirement that nurses work twin shifts did not constitute a violation where
management-rights clause gave employer the right to assign employees to different shifts).
Moreover, the evidence shows that, before the first shift-bid under the CBA, Ed Martin
specifically told Respondent that Walker could decide for himself whether he wanted to bid for 30
work as a utility engineer or a maintenance engineer; Walker then chose to bid into a shift
working as a maintenance engineer. After specifically delegating the choice to Walker, the
Union cannot now complain about his choice to work as a maintenance engineer and demand
that Respondent bargain over the decision. Under these circumstances, there is no violation and
I recommend this allegation be dismissed. 35
V. THE INFORMATION REQUEST ALLEGATIONS
A. Legal Standard
40
Section 8(a)(5) of the Act imposes a “duty to bargain collectively” on an employer which
includes the obligation to supply a union with requested information that will enable it to
“negotiate effectively and perform its duties as bargaining representative.” New York &
Presbyterian Hospital v. NLRB, 649 F.3d 723, 729 (D.C. Cir. 2011), enfg. 355 NLRB 627
(2010). This includes the duty to furnish the union with information requested in order to 45
properly administer a collective-bargaining agreement, and the processing and evaluating of
JD(SF)–13–20
78
grievances. Teachers College, Columbia University, 365 NLRB No. 86, slip op. at 4 (2007),
enfd. 902 F.3d 296, 302 (D.C. Cir. 2018).
Information requests concerning bargaining-unit employees are presumptively relevant,
as they go to the core of the employer-employee relationship. Id. If the information “request 5
involves nonunit employees or operations, the union has the burden of establishing the relevance
of the requested information.” Id. To satisfy this burden, the Union needs to show a reasonable
belief, supported by objective evidence, that the requested information is relevant. Id. See also
Disneyland Park, 350 NLRB 1256, 2157 (2007). In either instance, the Board applies a “liberal
discovery-type standard” to determine the relevance of an information request. Id; See also U.S. 10
Testing Co. v. NLRB, 160 F.3d 14, 19 (D.C. Cir. 1998) (“Board is to apply a liberal discovery-
type standard” to information requests).
B. The Union’s Request for Employee Social Security Numbers
15
1. Facts
Ed Martin testified that, as early as June 2018, he asked Respondent to provide him with
employee Social Security numbers. According to Ed Martin, the Union needed this information
because the pension fund primarily tracks employees by Social Security number. And, the 20
Union wanted to ensure that unit employees received proper pension credits. Ed Martin testified
that he explained the reason for the request directly to Marty Martin. (Tr. 495–97, 499; GC. 6)
Employee Social Security numbers were also discussed in an August 29, 2018, email that
Ed Martin sent to Marty Martin and Dramise, regarding documents the Union received pursuant 25
to an earlier information request. In the August 29 email, Ed Martin wrote “[t]he information is
incomplete. Missing is SSN and current addresses. This information is required for the pension
fund notifications.” (GC. 32) Then, on September 26, 2018, Ed Martin met with Marsh in
person and again asked for unit members’ Social Security numbers, telling Marsh that he needed
the information so he could include the bargaining unit members in the union pension fund. 30
Marsh gave the Union the contact information for bargaining-unit employees but did not provide
the Social Security numbers. Marsh testified that Marty Martin told him to not provide Social
Security numbers to the Union because this information was personal in nature. A few weeks
later, on October 6, Marsh emailed Ed Martin saying that he had requested the employee Social
Security numbers, but the request was denied; Marty Martin and Dramise were copied on the 35
email. (Tr. 35–37; GC. 6, GC. 32)
Marty Martin confirmed he told Marsh to withhold unit employee Social Security
numbers from the Union, claiming that several employees were concerned and did not want the
information provided to the Union. Marty Martin testified that there were several engineers who 40
did not “want to want to participate in the bargaining unit at that point,” did not want the Union
to have this information and they had not “signed up for the pension or anything.” (Tr. 367–68)
It is undisputed that the Union never received the Social Security numbers. It is also undisputed
that the CBA requires pension contributions be made for all bargaining-unit employees, and not
just those who want to sign up for the pension plan. (Tr. 499; GC. 3, GC. 6) 45
JD(SF)–13–20
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2. Analysis
In their respective briefs, none of the parties cite any case-law regarding the relevance of
the Union’s request for employee Social Security numbers. Notwithstanding, the Board’s
position on this matter is well established. “The Board has held that employee social security 5
numbers . . . are not presumptively relevant and that the Union must therefore demonstrate the
relevance of such information.” Metro Health Foundation, Inc., 338 NLRB 802, 803 fn. 2
(2003) (citing Dexter Fastener Technologies, 321 NLRB 612, 613 fn. 2 (1996) (summary
judgment denied with respect to Social Security numbers). Thus, the Union needs to show a
reasonable belief, supported by objective evidence, that the information request is relevant. 10
Disneyland Park, 350 NLRB at 2157–58.
Here, applying a “liberal discovery-type standard,” I believe the Union has met its
burden. Teachers College, Columbia University, 365 NLRB No. 86, slip op. at 4. The Union
explained to both Marty Martin and Marsh that it needed the information to ensure employees 15
were properly enrolled/credited with their pension contributions. These contributions are
mandated by the CBA for all bargaining-unit employees. And, bargaining-unit employee Social
Security numbers are not considered confidential information within the meaning of Detroit
Edison Co. v. NLRB, 440 U.S. 301 (1979). See NLRB v. New Jersey Bell Telephone Co., 936
F.2d 144, 152 fn. 11 (3d Cir. 1991). Under these circumstances, I find that Respondent violated 20
Section 8(a)(1) and (5) of the Act by failing to provide the Union with bargaining-unit employee
Social Security numbers. Radisson Plaza Minneapolis, 307 NLRB 94, 110 (1992) (violation
where employer failed to provide information, including the Social Security numbers of
bargaining-unit employees), enfd. 987 F.2d 1376 (8th Cir. 1993).
25
C. Union’s August 17, 2018 Information Request about Arellano’s Disciplines
On August 17, 2018, the day after Arellano received three separate disciplines, Ed Martin
emailed Marty Martin and Dramise requesting the following information: (1) all the written
policies and procedures that Arellano was alleged to have violated; and (2) copies of any 30
previous written discipline given to any department employee regarding the same policies or
procedures. Ed Martin attached to his email a grievance regarding Arellano’s disciplines.
Respondent did not respond or provide any of the information requested. (Tr. 486–87, 1204;
GC. 11–13; GC. 25)
35
A union’s information request seeking the policies that unit employees are accused to
have violated, and any comparative disciplines relating thereto, are presumptively relevant. St.
Francis Regional Medical Center, 363 NLRB No. 69, slip op. at 22 (2015). Therefore, by failing
to provide the information requested, Respondent violated Section 8(a)(1) and (5) of the Act.
40
D. Union’s September 5, 2018 Information Request about Servin’s Discipline
On September 5, 2018, the Union requested that Respondent provide the following
information relating to the discipline that Servin was issued on September 1: (1) all written
policies and procedures that Servin was alleged to have violated; and (2) copies of any previous 45
written discipline administered to department employees for violating the same polices. The
JD(SF)–13–20
80
Union had filed a grievance over the discipline. Respondent did not provide the requested
information. (Tr. 487, 362, 1205; GC. 16, GC. 27)
The information the Union requested here is presumptively relevant. St. Francis
Regional Medical Center, 363 NLRB No. 69, slip op. at 22 (2015). By failing to provide the 5
information, Apex violated Section 8(a)(1) and (5) of the Act.
E. Union’s September 11, 2018 Information Request
Complaint paragraph 8(i) alleges a separate violation that is based on a September 11, 10
2018 email from Ed Martin to Marsh. (GC. 1(qq);) (GC. Br. at 57) As part of a longer email
chain, on September 11, Ed Martin sent Marsh an email reading, in part, as follows:
I am requesting copies of all written policies and procedures the individuals are
alleged to have violated. I am also requesting copies of any previous write up 15
given to any department employee regarding the same policies or procedures.
It is unclear from the email which “individuals” the Union is referring to, whether they are unit
employees or non-unit employees. There was no further explanation in the email, nor was there
testimony at trial from Ed Martin explaining the significance of this specific email. (GC. 6)20
In its brief, and in the Complaint itself, the General Counsel asserts that “individuals” in
question are Arellano and Servin. (GC. Br. 57) If true, then this allegation is identical to
Complaint paragraph 8(g), seeking information regarding Arellano’s August 16 discipline, and
Complaint paragraph 8(h), which asks for information regarding Servin’s September 1 25
discipline. There is no evidence that Arellano was issued any discipline between August 16 and
September 11, nor is there evidence that Servin was presented with a discipline between
September 1 and September 11. And, the General Counsel does not otherwise explain what
specific incidents, or violations, this information request relates to. The Union, in its brief,
admits that Ed Martin’s September 11 information request was duplicative of the Union’s 30
previous requests regarding Arellano and Servin, asserting that the email was a reminder to
Respondent that they had not provided the information. (Union Br., at 29) Accordingly, because
Complaint paragraph 8(i) deals with the exact same information requests covered by Complaint
paragraphs 8(g) and 8(h), I recommend that this allegation be dismissed as being duplicative.
35
F. Union’s September 17, 2018 Information Request for Invoices and Shift Schedules
1. Facts
On September 17, 2018, the Union filed two separate grievances with Respondent, and 40
made information requests regarding the grievances. Both grievances, and their associated
information requests, were made via emails sent by Ed Martin to Dramise and Marty Martin;
Arellano and Servin were copied on the emails. (GC. 28)
The Union’s first grievance involved Respondent allegedly using employees of AJ 45
Industries to perform bargaining unit work, claiming the practice violated Article 12 of the CBA.
JD(SF)–13–20
81
AJ Industries sells commercial laundry equipment and is owned by Dramise. Along with
installing laundry equipment, employees of AJ Industries have performed warranty work on
Apex equipment and have also performed other maintenance work on Respondent’s machines
pursuant to a maintenance contract. (Tr. 193, 488, 1025, 1133; GC. 28) The Union’s grievance
reads as follows:5
On or about 8/27/18 Apex Linen used AJ Industries employees to do bargaining
unit work. This is a violation of Article 12 and any others that may apply.
Members to be made whole.
10
In its information request, the Union asked for copies of all AJ Industries invoices showing labor
performed at Apex for of July, August, and September of 2018 in order to substantiate its
grievance claims. Ed Martin testified that, after he sent the information request, he received
correspondence from Marsh and Dramise asking why the Union wanted the information and
inquiring as to what documents the Union was specifically seeking. According to Ed Martin, he 15
told Respondent that he made the information request because he “felt that A.J Industries . . . was
being used to supplant bargaining unit members doing work” on the shop floor which is a
violation of the contract. (Tr. 488) He further testified that he told Dramise and Martin that he
was seeking invoices showing the billing for the individuals working in the plant that would
show “what the work was for.” (Tr. 488) No other evidence was presented regarding the 20
Union’s need for the information. The Union never received the documents it asked for. (Tr.
487–89; GC. 28)
The Union’s second grievance alleges that Sharron was performing bargaining unit work,
in violation of Article 24 of the CBA, in that he covered shifts for engineers in August and 25
September 2018. In the accompanying information request, the Union asked for documents
showing all shifts where engineers were on duty in August and September 2018, as well as
documents showing shifts that engineers were scheduled to work but did not do so. Ed Martin
testified he had received reports that Sharron was covering shifts for engineers who were on
vacation, resulting in certain shifts where no bargaining-unit members were actually working. 30
The Union believed the CBA required a bargaining-unit engineer to be present during all shifts
when equipment was running in the plant. Again, the Union did not receive the information it
had requested. (Tr. 489–90; GC. 29)
2. Analysis35
a. Request for subcontracting invoices
Here, AJ Industries serves as a subcontractor and third-party vendor for Respondent.
Therefore, the Union’s information request seeking invoices for AJ Industries is not 40
presumptively relevant. See e.g., Disneyland Park, 350 NLRB 1256, 1258 (2007) (“Information
about subcontracting agreements, even those relating to bargaining unit employees’ terms and
conditions of employment, is not presumptively relevant.”). Accordingly, to be entitled to the
information, it was incumbent upon the Union to establish the relevance of its request. Ethicon,
A Johnson & Johnson Co., 360 NLRB 827, 832 (2014). The Union needed to demonstrate “a 45
reasonable belief supported by objective evidence for requesting the information.” Teachers
JD(SF)–13–20
82
College, 365 NLRB No. 86, slip op. at 4. (internal quotations omitted) “The union is not
required to show that the information in its possession that triggered the request is accurate or
ultimately reliable,” and may even base an information request on hearsay or rumors, “providing
that there is at least some demonstration that the request for information is more than pure
fantasy.” Id. (internal quotations and citations omitted). While a bare assertion from the union 5
that it needs the information is insufficient, the threshold for relevance is low. Teachers College,
Columbia University v. NLRB, 902 F.3d 296, 302 (D.C. Cir. 2018).
According to Ed Martin, he sought the subcontracting information to support his
grievance because he “felt” Respondent was using AJ Industries to perform work on the shop 10
floor, thereby displacing bargaining unit members. This explanation, along with the Union’s
grievance, was the only evidence presented at trial supporting the Union’s information request.
Respondent asserts that, notwithstanding the grievance, it did not have to provide the
information because the CBA allows for Apex to subcontract work. (Resp’t Br. at 59) Section 15
12.03 of the CBA gives Respondent the right to subcontract work “to the extent and for the
purposes it has done so in the past,” but states that other bargaining unit work may be contracted
out only if the Union cannot furnish qualified employees to perform the work. (GC. 3, p 27)
Here, had the Union presented some basis for suspecting that Respondent might be in breach of
the subcontracting provision, it would be entitled to the information. Disneyland Park, 350 20
NLRB at 1259–1260 (Member Liebman dissenting) (citing Detroit Edison Co., 314 NLRB 1273,
1275 (1994)). However, the only evidence presented at trial supporting the Union’s information
request was Ed Martin’s testimony that he “felt” Respondent was in breach of the agreement.
Notwithstanding the Union’s outstanding grievance, and the low threshold for establishing
relevance, the baseline must be greater than a subjective feeling, particularly when no evidence 25
was presented as to why the Union “felt” this way. Compare, Teachers College, 365 NLRB No.
86, slip op. at 4 (2007) (union showed relevance of request seeking information about non-unit
employees performing bargaining unit work by relying upon information gathered from union
members) with Disneyland Park, 350 NLRB 1256, 1259 (2007) (union, which claimed a breach
of the collective-bargaining agreement, was not entitled to subcontracting information where it 30
did not present “at least some facts to support” its claim). Under the circumstances presented
here, I find that the General Counsel has not met his burden of showing that the Union had a
reasonable belief supported by objective evidence for requesting the invoices, and I therefore
recommend this portion of the Complaint be dismissed.
35
b. Request for unit employee work schedules
In support of its grievance alleging Sharron was performing bargaining unit work, the
Union asked for work-shift documents showing which engineers were on duty, and which
engineers were scheduled to work but did not do so, in August and September of 2018. A 40
union’s request for unit employee work schedules is presumptively relevant and must be
furnished upon request. CVS Albany, LLC, 364 NLRB No. 122, slip op. at 1 (2016).
Accordingly, by failing to provide this presumptively relevant information, Respondent violated
Section 8(a)(1) and (5) of the Act.
45
JD(SF)–13–20
83
G. Union’s September 19, 2018 Information Requests About Disciplines
On September 18, 2018, Respondent issued two disciplines each to Arellano and Servin.
Arellano was disciplined for his work on the water vale and the Rema Vac, while Servin was
issued a discipline for his work on the double-buck and one for insubordination involving his 5
interaction with Sharron at Iron #3. The next day, Ed Martin filed grievances over all the
disciplines. He also made two separate information requests, one regarding the disciplines
issued to Arellano and one regarding the disciplines issued to Servin. In each information
request he asked that Respondent produce the following: (a) all written policies and procedures
that were alleged to have been violated; (b) copies of all disciplines issued to bargaining unit 10
employees in the past 5 years regarding those policies and procedures; and (c) copies of any
evidence, including audio or video surveillance or statements, used to make the determination to
issue the disciplines. The Union never received any of the information that it requested. (Tr.
491; GC. 17–20, 30, 31)
15
All of the information requested by the Union related directly to the disciplines of
Arellano and Servin, along with their related grievances, and was therefore presumptively
relevant. PAE Aviation & Technical Services, LLC, 366 NLRB No. 95, slip op. at 2 (2018)
(information pertaining to unit employees is presumptively relevant, and employer is obligated to
provide information that is relevant to a union’s filing or processing of grievances, including 20
information bearing on the union’s preparation of a defense for the grievant). And, the Union
sought the type of information that the Board regularly requires a party to produce pursuant to an
information request. HTH Corp., 361 NLRB 709, 755 (2014) (prior disciplinary actions);48
Stephens Media, LLC, 356 NLRB 661, 683–84 (2011) (copies of policies employee allegedly
violated); Teamsters Local 89, 365 NLRB No. 115, slip op. at 11, fn. 11 (2017) (statements); 25
NTN Bower Corp., 356 NLRB 1072, 1139 (2011) (video/audio tapes).
Any claim by Respondent that the Union already had a copy of the employee handbook
(Resp’t Br. at 59), even if true, is not a valid defense, as Apex neither provided the information
again, nor did it advise the Union that it had previously provided the information. Postal 30
Service, 332 NLRB 635, 636 (2000). This is particularly true here, as Marsh testified that his
knowledge of the Union allegedly being in possession of the employee handbook came from a
hearsay discussion with Marty Martin who said that it was produced during a previous NLRB
hearing. (Tr. 220) The previous NLRB trial occurred in 2017, Apex Linen Services Inc.,
JD(SF)-15-18, 2018 WL 2733700 (2018), and Marty Martin testified the handbook was revised 35
in 2018. (Tr. 414) Apex has not presented a valid defense for refusing to provide the
information requested. Accordingly, Respondent violated Section 8(a)(1) and (5) of the Act by
not responding to the Union’s September 19, 2018 information request.
40
48 Respondent did not claim that producing disciplines going back 5 years was somehow burdensome or overbroad.
United Parcel Service of America, 362 NLRB 160, 162 (2015) (if an “employer has a legitimate claim that a request
for information is unduly burdensome or overbroad, it must articulate those concerns to the union and make a timely
offer to cooperate with the union to reach a mutually acceptable accommodation”).
JD(SF)–13–20
84
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.5
2. The International Union of Operating Engineers, Local 501, AFL-CIO (Union) is
a labor organization within the meaning of Section 2(5) of the Act.
3. The following employees constitute an appropriate unit for purposes of collective 10
bargaining within the meaning of Section 9(b) of the Act:
All full-time, regular part-time and extra board Engineers and Utility Engineers
employed by Respondent at its facility located in Las Vegas, Nevada; excluding
all other employees, office clericals, guards, and supervisors as defined in the Act. 15
4. By threatening employees with reprisals because they engaged in activities
protected by the Act, Respondent has violated Section 8(a)(1) of the Act.
5. By discriminating against Adam Arellano and Joseph Servin (including by more 20
strictly enforcing work rules) and by discriminating against Charlie Walker, because they
engaged in union activities and engaged in protected concerted activities by testifying at a Board
hearing, participating in Board investigations, and were named in an injunction proceeding in
Federal District Court where the Board was a party, Respondent has violated Section 8(a)(3),
8(a)(4) and 8(a)(1) of the Act. 25
6. By failing and refusing to provide the Union with the information it requested that
is relevant and necessary to the Union’s performance of its duties as collective-bargaining
representative of its employees, Respondent has been engaged in unfair labor practices within the
meaning of Section 8(a)(5) and 8(a)(1) of the Act.30
7. The above unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY35
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative actions designed to
effectuate the policies of the Act.
40
Specifically, having found that Respondent violated Section 8(a)(3) and 8(a)(4) of the
Act by suspending and discharging Adam Arellano, and discharging Joseph Servin, I shall order
Respondent to reinstate them and make them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them.
45
JD(SF)–13–20
85
Respondent shall compensate Adam Arellano and Joseph Servin for any adverse tax
consequences of receiving a lump–sum backpay award in accordance with Don Chavas, LLC
d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). Respondent shall also compensate them for
their search–for–work and interim employment expenses regardless of whether those expenses
exceed interim earnings. King Soopers, Inc., 364 NLRB No. 93 (2016).5
Backpay, search–for–work, and interim employment expenses, shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed
in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB 6 (2010).10
Additionally, in accordance with AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016), Respondent shall file with the Regional Director for Region 28, within 21 days of the
date the amount of backpay is fixed, either by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar years. The Regional Director will then assume 15
responsibility for transmission of the report to the Social Security Administration.
The Respondent shall also be required to expunge from its files any references to the
unlawful disciplines, suspension, and discharge issued to Adam Arellano, and the unlawful
disciplines and discharge issued to Joseph Servin, and notify them and the Regional Director of 20
Region 28, in writing, that this has been done and that these unlawful employment actions will
not be used against them in any way. The Respondent shall also post the attached notice in
accordance with J. Picini Flooring, 356 NLRB 11 (2010) and Durham School Services, 360
NLRB 694 (2014).
25
In addition to the notice posting, in the Complaint the General Counsel requests an order
that the notice be read aloud to employees by a responsible management official. “The Board is
vested with ‘broad discretion to devise remedies that effectuate the policies of the Act.’” United
Nurses Association of California v. NLRB, 871 F.3d 767, 789 (9th Cir. 2017) (quoting Sure-Tan,
Inc., v. NLRB, 467 U.S. 883, 898–99 (1984)). “[A] reading order is . . . ‘an effective but 30
moderate way to let in a warming wind of information, and more important, reassurance.’” Id.
(emphasis omitted) (quoting UNF West Inc., v. NLRB, 844 F.3d 451, 463 (5th Cir. 2016)).
Here, I find that a notice-reading remedy is appropriate, as Respondent is a recidivist
violator, and has engaged in multiple violations of the Act. As for Apex’s proclivity to violate 35
the Act, the Board adopted the Sotolongo decision, where it found that Apex: violated Section
8(a)(1) of the Act by interrogating employees, threatening employees, and creating the
impression surveillance; violated Section 8(a)(3) of the Act by discharging/laying off Arellano,
Servin, and Walker, and accelerating the closure of the engineers’ break room; and violated
Section 8(a)(5) of the Act by changing employee work schedules, dealing directly with 40
employees, disciplining employees without bargaining, and failing to furnish the Union with
information. Apex Linen Services Inc., JD(SF)-15-18, 2018 WL 2733700 (2018). Upon the
reinstatement of Arellano, Servin, and Walker, Respondent immediately began violating the Act
again, as outlined herein. And, Respondent’s violations started at a time when it was under a
District Court order restraining and enjoining the company committing from further violations. 45
Moreover, before Respondent’s engineers unionized, another union tried organizing Apex
JD(SF)–13–20
86
production employees, and Respondent was found to have violated Section 8(a)(3) of the Act by
discharging a production employee because of his union activities. Apex Linen Services, Inc.,
366 NLRB No. 12 (2018). In that case, Marty Martin was found to have been the person making
the decision to unlawfully fire the employee. Id. slip op. at 10, fn. 18. Requiring that the notice
be read “to the employees in the presence of a responsible management official serves as a 5
minimal acknowledgement of the obligations that have been imposed by law . . . provides
employees with some assurance that their rights under the Act will be respected in the future,”
and “will enable employees to fully perceive that the Respondent and its managers are bound by
the requirements of the Act.” Latino Express, 360 NLRB 911, 928 (2017) (internal quotations
omitted).49 Accordingly, the notice must be read to employees assembled for that purpose, on 10
working time, by a responsible management official. At Respondent’s option, the notice can
instead be read to employees by a Board agent, in the presence of a responsible management
official. The Board and a Union representative will be provided the opportunity to be present to
monitor the reading of the notice. Id. (citing Texas Super Foods, 303 NLRB 209, 220 (1991)).
15
In the Complaint, the General Counsel also requests that I order Respondent to reimburse
Arellano and Servin for the consequential economic harm incurred as a result of Respondent’s
unlawful conduct. However, the Board does not traditionally provide remedies for consequential
economic harm in make-whole orders. See Operating Engineers Local 513, 145 NLRB 554
(1963). Accordingly, this request is denied.20
Finally, Respondent is ordered to provide the Union with the relevant information it
requested, as outlined herein, that is necessary to the Union’s performance of its duties and
responsibilities as the exclusive collective-bargaining representative of Respondent’s employees.
25
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended50
ORDER
30
Respondent Apex Linen Services, Inc., its officers, agents, successors, and assigns,
shall:
1. Cease and desist from
35
(a) Threatening employees with reprisals because they engaged in activities
protected by the Act.
(b) Discriminating against employees, including by more strictly enforcing
work rules, for supporting the Union or because they engaged in protected concerted activities by 40
49 Notwithstanding Respondent’s recidivism, and the nature of the violations found herein, neither the General
Counsel nor the Union seek a broad cease and desist order.
50 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
objections to them shall be deemed waived for all purposes.
JD(SF)–13–20
87
testifying at a Board hearing, participating in Board investigations, or because they were named
in an injunction proceeding in Federal District Court where the Board was a party.
(c) Refusing to provide the Union with information it requested that is
relevant and necessary to the Union’s performance of its duties as the collective-bargaining 5
representative of Respondent’s employees.
(d) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
10
2. Take the following affirmative action necessary to effectuate the policies of the Act
(a) Promptly provide the Union with all the relevant information it requested,
including but not limited to, unit employee Social Security numbers, written policies and
procedures that Adam Arellano and Joseph Servin were alleged to have violated resulting in their 15
discipline(s), evidence relied upon to determine discipline was appropriate, comparator
disciplines, and unit employee work schedules.
(b) Within 14 days from the date of the Board’s Order, offer Adam Arellano
and Joseph Servin full reinstatement to their former jobs or, if those jobs no longer exist, to 20
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(c) Make Adam Arellano and Joseph Servin whole for any loss of earnings
and other benefits suffered as a result of the discrimination against them in the manner set forth 25
in the remedy section of this decision.
(d) Compensate Adam Arellano and Joseph Servin for the adverse tax
consequences, if any, of receiving a lump-sum backpay award, and file with the Regional
Director for Region 28, within 21 days of the date the amount of backpay is fixed, either by 30
agreement or Board order, a report allocating the backpay award to the appropriate calendar
years.
(e) Within 14 days from the date of the Board’s Order, remove from its files
any reference to the unlawful disciplines, suspension, and discharge of Adam Arellano and the 35
unlawful disciplines and discharge of Joseph Servin, and within 3 days thereafter, notify them in
writing that this has been done and that the unlawful employment actions will not be used against
them in any way.
(f) Preserve and, within 14 days of a request, or such additional time as the 40
Regional Director may allow for good cause shown, provide at a reasonable place designated by
the Board or its agents, all payroll records, Social Security payment records, timecards,
personnel records and reports, and all other records, including electronic copies of such records if
stored in electronic form, necessary to analyze the amount of back pay due under the terms of the
Board’s Order.45
JD(SF)–13–20
88
(g) Within 14 days after service by the Region, post at its Las Vegas, Nevada
facility copies of the attached notice marked “Appendix.” Copies of the notice, on forms
provided by the Regional Director for Region 28, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places, including all places where notices to employees are customarily 5
posted.51 In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Respondent has gone out of business or closed 10
the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former employees employed by the
Respondent at any time since February 22, 2018.
(h) Within 14 days after service by the Region, hold a meeting or meetings, 15
during working time, scheduled to ensure the widest possible attendance, at which the attached
notice is to be read to the employees assembled for this purpose, by a responsible official of the
Respondent, or by a Board agent in the presence of a responsible official of the Respondent, and
provide an opportunity for representatives of the Board and the Union to be present for the
reading of the notice.20
(i) Within 21 days after service by the Region, file with the Regional Director
for Region 28 a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply with this order.
25
Dated, Washington, D.C. May 28, 2020
_________________________
John T. Giannopoulos30
Administrative Law Judge
51 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the
notices must be posted within 14 days after service by the Region. If the facility involved in these proceedings is
closed due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices must be posted within 14 days after
the facility reopens and a substantial complement of employees have returned to work, and the notices may not be
posted until a substantial complement of employees have returned to work. Any delay in the physical posting of
paper notices also applies to the electronic distribution of the notice if the Respondent customarily communicates
with its employees by electronic means, and to the reading of the notice to employees. 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
Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board.”
i
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 violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose a representative to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT threaten you with reprisals because you engaged in activities protected by the
National Labor Relations Act.
WE WILL NOT discriminate against you, including by more strictly enforcing work rules, for
supporting the International Union of Operating Engineers, Local 501, AFL-CIO, (Union), or
any other labor organization, or because you have engaged in protected concerted activities by
testifying at a National Labor Relations Board (Board) hearing, participating in Board
investigations, or because you were named in an injunction proceeding in Federal District Court
where the Board was a party.
WE WILL NOT refuse to provide the Union with information it requested that is relevant and
necessary to the Union’s performance of its duties as collective-bargaining representative.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights listed above.
WE WILL promptly provide the Union with all the relevant information it requested, including
but not limited to, unit employee Social Security numbers, written policies and procedures that
Adam Arellano and Joseph Servin were alleged to have violated resulting in their discipline,
evidence relied upon to determine discipline was appropriate, comparator disciplines, and unit
employee work schedules.
WE WILL, within 14 days from the date of the Board’s Order, offer Adam Arellano and Joseph
Servin full reinstatement to their former jobs or, if those jobs no longer exists, to a substantially
equivalent positions, without prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Adam Arellano and Joseph Servin whole for any loss of earnings and other
benefits resulting from the discrimination against them, less any net interim earnings, plus
interest, and WE WILL also make such employees whole for reasonable search-for-work and
interim employment expenses, plus interest.
ii
WE WILL compensate Adam Arellano and Joseph Servin for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and we will file with the Regional Director for
Region 28, within 21 days of the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the appropriate calendar years.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
references to the unlawful disciplines, suspension, and discharge issued to Adam Arellano, and
the unlawful disciplines and discharge issued to Joseph Servin , and WE WILL, within 3 days
thereafter, notify them in writing that this has been done and that these unlawful employment
actions will not be used against them in any way.
Apex Linen Service, Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov
300 Las Vegas Boulevard South, Las Vegas, NV 89101
(702) 388-6416, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-216351 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER (602) 416-4755.