BED, BATH & BEYOND

National Labor Relations Board - Administrative Judge Opinions

Jan 8, 2013

22-CA-080407 (N.L.R.B. Jan. 8, 2013)

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Port Redding, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
BED BATH & BEYOND, INC.
and Case No. 22-CA-080407
SEGUNDO ESCOBEDO, An Individual
Michael Silverstein, Esq., Counsel for the General Counsel.
Edward Jeffrey, Esq., Jackson Lewis, LLP, Counsel for the Respondent.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on October
24 and 25, 20121 in Newark, New Jersey. The Complaint herein, which issued on August 30,
and was based upon an unfair labor practice charge that was filed on May 7 by Segundo
Escobedo, alleges that in about February or March, Bed Bath & Beyond, herein called
Respondent, interrogated employees about their union activities, and the union activities of
other employees, and on about April 20 Respondent terminated Escobedo because of his union
and protected concerted activities, in violation of Section 8(a)(1)(3) of the Act.
I. Jurisdiction
Respondent admits, and I find, that it has been an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
II. The Facts
The Respondent operates a warehouse in Port Reading, New Jersey, herein called the
facility, employing approximately one thousand individuals on three shifts; most of the
employees at the facility are Spanish speaking. Escobedo had been employed at the facility
since September 2009 in the cycle count department on the 7 a.m. to 3 p.m. shift; there are
twenty five to thirty employees in his department. He operated a “Lotus Picker,” which is similar
to a forklift, carrying pallets with merchandise to different departments in the facility. His
supervisor was Yesinia Placencia and the manager of his department was Isaac Anthony.
Escobedo was terminated on about April 19; Counsel for the General Counsel alleges that he
was terminated because he was one of the employees who distributed authorization cards for
United Food & Commercial Workers, Local 888, herein called the Union, while the Respondent
contends that he was fired because of a threat he made to a fellow employee, Christian Coller,
on April 18, in the presence of a supervisor and manager. In addition, it is alleged that
Respondent, by its warehouse manager, Diana Orozco, in about February or March,
interrogated employees (actually, Escobedo) about their Union activities and the Union activities
of other employees, in violation of Section 8(a)(1) of the Act.

1 Unless indicated otherwise, all dates referred to herein relate to the year 2012.
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Escobedo was the only witness testifying for Counsel for the General Counsel, and he
testified about signing an authorization card for the Union, as well as soliciting other employees
at the facility to sign cards. He testified that his Union activity began in about October or
November 2011, when fellow employee, Juan Alegre, spoke to him about the Union while they
were in the internal lunchroom. 2 He gave Alegre his telephone number and address and that
weekend he was visited at his home by Jennifer Heysoll, a Union representative. She spent a
few hours with him telling him what the Union could do for the employees, and told him that she
would give him Union pamphlets to distribute to other employees and asked him to notify other
employees of upcoming Union meetings. He estimated that from November 2011 to the date
that he was fired there were approximately twenty or twenty five Union meetings, all at a bakery
in Perth Amboy, New Jersey. The meetings, held weekly, biweekly or every three weeks, began
with about twenty five employees attending, with increased participation over time. From that
time, until his termination, he spoke to employees about the Union before or after work and
during lunch or break time, at the entrance to the warehouse in the parking lot, in the inside
dining room, or in the bathroom. He estimated that during this period he spoke to about two
hundred fifty employees and gave them pamphlets about the Union and papers containing the
Union name, Heysoll’s name, and the date and location of the next Union meeting, and gave
them literature to distribute to other employees. In addition, about twenty to twenty five
employees came to his house, where he talked to them about the Union, and told them what the
Union could do for them. Further, employees called him to speak about the Union, and he called
employees to tell them of the advantages of joining the Union. Escobedo signed an
authorization card for the Union on February 11, the date that the Union began soliciting
authorization cards. From that date until the day he was fired, he distributed Union authorization
cards to other employees, some in large numbers for the employees to distribute, and some
individually for the employees to sign. When he was given these cards to distribute, he was told
to be careful that he wasn’t observed by the bosses, or he could get fired, and he repeated this
message to the employees to whom he gave cards to be distributed. He distributed these cards
in the parking lot, in the internal dining room, and at his home, before or after work, during
break, or on days off. He estimated that he gave authorization cards to ten to fifteen employees
in the parking lot, about one hundred employees in the lunchroom, and about thirty to forty at his
home. After receiving the signed authorization cards, he gave them to the Union.
Escobedo testified that Heysoll came to the facility on two occasions to speak to the
employees, in March or April. On these occasions, she was standing in a walkway that leads to
Respondent’s parking lot. He knew that she would be there that day, and told about thirty
employees that, if they wished to do so, they could speak to her at that time. Heysoll was
wearing a yellow polo shirt with the Union’s logo and initials. When he went to speak to her,
there were ten or fifteen other employees with her. He spent about ten to fifteen minutes with
her and, while there, he saw “Mr. Earl,” an alleged supervisor in the receiving department, sitting
in his car nearby.
Escobedo testified to a number of conversations with managers and supervisors
regarding the Union, the first of which is alleged to violate Section 8(a)(1) of the Act. He testified
that on about February 20, he was in front of the offices of Orozco, the manager of the Putaway
Department (and an admitted supervisor and agent of the Respondent), and Alfonso Rangel,
who he testified is also the manager of the Putaway Department. Rangel had a blank Union
authorization card in his hand with an “X” marked on it, and Orozco “…asked me if I recognized

2 There are two dining rooms at the facility; the larger one is at the entrance to the building,
while the smaller one, which Escobedo usually referred to as the inside or internal dining room,
is inside the facility.
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this card or am I giving out this card.” He testified that he did not respond to her question
because she was pregnant and he did not want her to have “a bad time.” Rangel then said,
“Take a look at this card and ,make sure you notice it and tell your manager if you think you can
talk about it.” He also said that Bruce Silverman, then the Warehouse Director, wanted to know
who was involved with the Union. He testified further that about a week or two later he had a
conversation with Anthony the manager of Inventory and Control, and Antonio Raqueno, not
further identified. Anthony was talking in English and Raqueno was translating into Spanish.
They said that they had a message from Silverman: he should not let the Union deceive him.
Everything that the Union was promising was a lie and they only wanted the employees’ money.
They also asked if he knew who was helping the Union and, if he knew, he should tell
Silverman. The affidavit that he gave to the Board does not say that Anthony and Raqueno
asked him if he knew who was helping the Union. (This conversation, as well as the next one, is
not alleged as an unfair labor practice). The third conversation, with Anthony and “Javier,” a
systems manager in the Inventory Department, took place in the warehouse about two weeks
later. Anthony spoke in English, and Javier interpreted in Spanish. They said that there were
about a thousand employees at the facility and that if you multiply that by $30 or $38, if the
Union came in “it’s a whole bunch of money.” They also said that the employees shouldn’t let
the Union deceive them, that the Union was going to take their money and Silverman was
worried about that. They also said that Silverman “…wanted to know who was involved…with
the Union and that I should please let him know if I know something so that this could finish
once and for all…” Escobedo told them that if he knew anything, that he would tell them, they
shook hands and left. The affidavit that he gave to the Board does not say that Silverman
wanted to know who was involved with the Union, and that Escobedo should tell them who was
involved.
Orozco testified that she learned of the Union organizing campaign early in 2012; at
about that time, the Respondent “brought a team to train us how to talk to the associates about
the Union.” She testified that it was an extensive training where “…they explained to us the dos
and don’ts that we cannot do to the associates…we were not allowed to ask them questions
about the Union. We cannot spy about the Union. We cannot threaten an associate about the
Union.” During these training sessions, the trainers never asked the managers who they
believed was supporting the Union. She testified that the managers were instructed to speak to
employees in their group, but as his supervisor was on vacation at the time, she spoke to him;
Rangel was with her at the time. She showed him (and the other employees in her group) a flier
with a reproduction of a Union authorization card with an X across the top. She said that this is
what a Union card looks like and told him how a union works and the fees that they charge. He
replied that, “he didn’t have time for any of those things” because he had two full time jobs. So
she told him, “Okay, just keep the flier, we’re giving it to all associates.” That was the extent of
her conversation with him. She did not ask him whether he was distributing Union cards, if he
knew who was, or if he recognized the card.
Ana Schnauffer, a Senior HR Manager for the Respondent, testified that she learned of
the Union’s organizing campaign in about February. At about that time, the law firm representing
them provided training for all their managers of the dos and don’ts during a union campaign,
and they sent campaign literature to the employees. As part of this training, the managers were
told that they were not allowed to question employees on whether they wanted a union and they
were not allowed to spy on meetings.
Coller testified that he signed a Union authorization card that was given to him by
Escobedo, but he could not remember when he signed the card, whether it was days or a month
prior to April 18. Escobedo approached him while he was working and said that he had a union
card for him to sign, that the Union was good and could increase their pay. He also told Coller to
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talk to the other employees who were from Puerto Rico about the Union. It appeared to Coller
that Escobedo was one of the employees who was “in charge” of bringing in the Union; other
employees referred to him as the president of the Union.
The Respondent began holding meetings with the employees a few weeks after the
Union began its organizing campaign at the facility. These meetings, with small groups of
employees, took place two or three times a week. Nothing said at these meetings is alleged to
violate the Act. Escobedo testified that at the first meeting, Silverman showed the employees a
Union card with a X written over it, and said that signing the card was like signing a blank check,
“and that it’s everyone’s own decision.” However, he testified that Silverman also said that he
wanted to know who was the one giving out the cards, and that he would soon find out.
Schnauffer testified that at meetings of employees conducted by Silverman, she translated what
he said from English to Spanish. She and Silverman were given a script to read and “we were
instructed to stay to the script,” which they did. They did not say that the company wanted to
know who was giving out Union cards, and that the company would soon learn who was doing
so.
The event that precipitated Escobedo’s termination occurred on April 18. The facts of the
incident that lead up to the meeting in Orozco’s office and his subsequent termination are not
disputed; what occurred in Orozco’s office is disputed. In addition, Respondent defends that he
was terminated solely for his actions on that day, not for any work related problems. As part of
their jobs, both Escobedo and Coller use forklifts which transport merchandise on pallets.
Escobedo testified that he and other employees were separating merchandise and
placing it on pallets to be returned to its proper location at a later time. Shortly before the 9:30
break he parked the pallet adjacent to the inside dining room. A few minutes before the break,
Coller drove his forklift and pallet and tried to park it on the side of the dining room, even though
the area already contained four pallets and there was no space for his pallet. However, he tried
to force his pallet in the area causing merchandise from Escobedo’s pallet, and another pallet to
fall to the floor. Escobedo told Coller to fix the pallets and that he should be more careful, and
Coller pushed the pallets again, causing more products to fall. Escobedo walked up to Coller
and said, “Look what you’re doing, please pick it up.” Coller responded, “I’ll do what I want, “and
Escobedo said that he was going to go to Coller’s manager to tell her what had happened. He
then went to Orozco’s office and told her what had occurred with the pallets and what Coller had
said, and Orozco said, “Let’s go over there.” He and Orozco walked to the inside dining room,
and she told him to go inside and take his break, and she would discuss the matter with Coller
afterward. He went into the dining room and Coller said loudly that “we were Satan and we were
against him.” As Coller was leaving the dining room, he looked at Escobedo and said, in a loud
voice, “I’m not afraid of you. Go ahead and complain wherever you want.” A supervisor,
Placencia, was present in the dining room at that time, and Escobedo said that she should do
something about what had occurred, and she replied, “I’m not going to eat shit for anybody.”
Escobedo then left the dining room and met with Jose Aguirre, Coller’s supervisor and told him
what had occurred, and he said that he knew about it and that he had sent Coller to Orozco’s
office, and he told Escobedo to follow him to Orozco’s office to explain what happened earlier.
They walked into Orozco’s office, Aguirre in front of Escobedo; Orozco was sitting at her desk,
and Coller was standing next to the desk. Aguirre was standing between him and Coller, who
were about two and a half feet apart. Escobedo told Orozco that Coller had called him a Satan
in the dining room, said that he wasn’t afraid of him, and that he could complain to whomever he
wanted; “at the end of the conversation I said this man is provoking me to punch him” and Coller
said that he wasn’t afraid of him, and Escobedo said that he wasn’t afraid of Coller. When he
was talking, Escobedo was leaning toward Orozco, and he “got up” and looked at Coller, while
Aguirre was standing between them. Both Orozco and Aguirre told them to calm down, which
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they did, and Aguirre left the office. Orozco then told Coller, “I don’t want to know anymore
about this. You are going to go and fix the merchandise and move your machine, and I don’t
want you to ever park there again.” Coller then left the office and Orozco, again, told Escobedo
to calm down and that he should try to be patient because Coller was trying to rehabilitate
himself, and he wouldn’t park in that spot anymore. Escobedo told her to excuse his tone of
voice as she was pregnant. He returned to work, and about two hours later Orozco asked him to
come to her office to prepare a statement about what had happened earlier with Coller in her
office, which he did.3
On the following day Escobedo was paged to report to the security department at the
facility, which he did. When he got there, he met with Raquena, who told him to see “Elsa” from
the security department, who told him that she wanted to know what happened on the prior day
with Coller, and he filled out a statement for her, as well.4 He told her that he had prepared a
statement for Orozco, but she said that he had to fill out a statement for the security department,
which he did. Afterward, he went for lunch and as he was leaving the dining room he was paged
to report to the main entrance. When he got there, he met with “Alfonso,” who took him to the
human resources department, where he met with “Mr. Nestor,” who told him that they decided to
fire him. Escobedo explained that he was the person who was abused and asked, “I’m the one
who is fired. How is that?” Nestor said that he was sorry, and asked him for his ID. Escobedo
asked if Coller was being fired, and he was told that he was the only one who was fired.
There is also some testimony that Escobedo referred to Coller as a “Boricuas,” an
allegedly derogatory term for people of Puerto Rican ancestry. Escobedo denies having used
that term or referring to “you people” or “those people” in talking about Coller or other Puerto
Ricans.
Orozco testified that on the day in question, Escobedo came to her office complaining
that Coller moved two of his pallets from in front of the dining room in order to park his forklift
there. She told him to take her to the area, which he did and he showed her where Coller
parked his forklift after moving the pallet and said that the merchandise fell to the floor and that
Coller put it back on the pallet and took his break. She told him to take his break and that she
would call him to the office after the break and they could discuss the incident at that time, and
she returned to her office. At the conclusion of the fifteen minute break she paged Coller to
come to her office. When he arrived a few minutes later, she told him what Escobedo had said
about what he did and she asked him why he parked his forklift next to the dining room, and he
said that he did it because it was close to the cafeteria. She then told him to put the pallets back
to where Escobedo originally had them, and that he was not to park in that area again. He said
that he would fix it, and he left the office. A few minutes later, Aguirre, one of the supervisors
working under her authority, came into her office with Escobedo and Coller, saying that
Escobedo complained about Coller and the pallets. When they came into the office, she was
sitting at her desk, Aguirre, sat on the other desk in the office, and Coller and Escobedo were
standing on the other side of her desk, about two feet apart. Orozco told them that she had
already spoken to Coller about the situation, and Coller said that he would move the pallets

3 This statement does not say anything about what occurred that day in Orozco’s office.
Escobedo testified that he didn’t think that he had to include it because Orozco and Aguirre
witnessed what occurred. He also did not mention the incident in the dining room; he testified
that he didn’t feel that he had to, because many other people, including a supervisor, overheard
what Coller said.
4 In this statement, Escobedo says that at the meeting in Orozco’s office, he stated: “I get
upset and I told him that I was not afraid of him and I want to punch him for being fresh.”
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when his break was over. Escobedo said, leaning toward Coller, that he knew how “those
people,” the Boricuas, are and “…he can fix this problem outside and punch him in the face.” At
that point, Aguirre moved to stand between the two of them and Orozco stood up from her chair
and told them to be quiet and to stop arguing. When the situation quieted down, Aguirre left the
office and she told Coller to return to the area, to put the pallets back to where they were
supposed to be, to return to work, and not to park in that area again. At that point, Coller and
Escobedo “were calm” and left her office at the same time.
Orozco testified that a few minutes after leaving his office Coller returned to her office,
crying and saying that he wanted to fill out a report about what happened in the office. She gave
him some papers to fill out a statement and told him that he could do it in Spanish. She did not
tell him what to write, only to write what happened in the office. After he finished writing the
statement5 she brought it to Marilyn Belo, at the HR office at the facility, and was told that since
she had a report from Coller, she had to get one from Escobedo and Aguirre, as well. She went
to them and asked them separately to fill out a report on what had occurred in the office and
each came to her office, separately, and prepared a statement6. When they completed the
statements, she read them and gave them to the Belo, telling her what had happened in her
office and that she did not agree with Escobedo’s statement because he did not mention that he
threatened to punch Coller in the face and fix it outside. Orozco testified that she does not
remember Coller telling her that Segundo was the employee handing out Union cards, as he
says in the statement that he gave to her.
Coller testified that on April 18, at about 9:20, he drove his forklift to the “cafeteria,” what
Escobedo referred to as the inside dining room. He testified that he always parks in front of the
cafeteria, like most of the other employees, but on that day a pallet was there and he “grabbed”
the pallet and moved it to the other side. Escobedo approached him and told him to return the
pallet to where it had been, but Coller “…thought that he was joking around. Many times before
there had been joking going around between us.” Coller said that he would put it back after the
break. Then another employee started yelling that he should put it back and, jokingly, said that
he should have to put money in the parking meter because it seemed to be his exclusive
parking space, and they agreed that he would put it back after the break. While he was in the
cafeteria, the employees continued to make the same jokes about his exclusive parking spot
and another employee told him not to pay attention to them, and he said that he was going to
ignore them. Before he had completed his break, he heard Orozco page him over the loud
speaker and as he was leaving the cafeteria he said, apparently to no one in particular, “I’m not
afraid of anyone, I’ll just go and tell Diana what happened.” When he got to the office, she asked
him about moving the pallet and he said that he never previously had a problem with anybody
and the employees were joking about the situation. She told him that in order to prevent a
repeat of the situation, he should not park in that spot again, and he agreed. As Coller was
leaving the office, he met Aguirre, who told him to return to Orozco’s office. At the same time, he
saw Escobedo coming into the office, “with an attitude,” talking about the Boricuas7, and saying,
“I’m not afraid of you, and we’ll go outside.” At that point, Aguirre moved between them and

5 Coller’s statement, dated April 18, says that Escobedo “…told me we will take care of this
outside…I told Diana that if he gets rough I will call the police. I am going to file a report with the
Perth Amboy police and I hope they can help me.” However, this statement also says: “I didn’t
tell her that I was upset or afraid of Segundo. I’m not afraid of anyone. I’ve been through too
much in my life to be afraid of another person.” His statement also says: “I told Diana that
Segundo was the one handing out Union cards…”
6 The statement written by Aguirre does not state that Escobedo used the term “Boricuas.”
7 Coller testified that he does not believe that the term Boricuas has a negative meaning.
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Escobedo again referred to the Boricuas and said that they can go outside and fight. Coller told
him to take it easy, he was saying all these things over a pallet that he moved, and that he
should calm down and talk like civilized people. Orozco told them to calm down, which they did
and Coller left the office and returned to his machine. At that time, he “…felt bad and I started to
get really nervous, uncomfortable…I parked the machine and I started to cry, because I was so
upset and because I was so nervous. And I told Diana I can’t stand any more over here. I’m
going to go home.” He said that the situation with the pallet wasn’t a reason for Escobedo to
insult him, and, “I was so upset that I told them about the union. I said that he was involved with
the union. And I also said that I signed the card. That he gave it to me and I signed it.” Coller
then said that he would fill out a report about the incident and he filled out the statement in
Orozco’s office, and gave it to her.
Ana Schnauffer has been employed at the facility as the Senior HR Manager at the
facility, testified that she makes the final determination on all discipline at the facility after
reviewing all data presented to her. The first she learned of the April 18 incident was on the
same day from the HR Manager, Nesta Rivera who told her that one associate had threatened
another. After Rivera had gathered additional evidence, the three statements, she reviewed
them as well as the statement that Escobedo gave, as a result of the request of the LP (Loss
Prevention) Manager, Eva Alvarez on the following day. In addition, she spoke to Alvarez about
the situation. On April 19, she decided that Escobedo should be terminated:
My basis was that I had two—one manager present during the threat, an associate
whose statement says that he was threatened by another associate and then after
speaking with the LP Manager, also stated that Mr. Escobedo had stated to her that he
in fact wanted to punch Christian Coller in the face. So my decision was based on those
witnesses.
She testified that the Respondent has a workplace violence policy that is set forth in its
Employee Handbook, and that it is her responsibility to be sure that there is a safe work
environment for all the associates, and “…that’s why that determination was made that Mr.
Escobedo would be separated.” She testified that as part of her investigation, she read Coller’s
statement which stated that Escobedo was the one handing out Union cards, but that fact did
not affect her decision to terminate him, nor did Escobedo’s feeling about the Union, or his
Union activity. In addition, she was “concerned” about what she felt was an ethnic slur, when
Escobedo allegedly referred to Coller as a Boricuas, as there are many different nationalities
employed at the facility. However, Escobedo was terminated because of the threat, not the
ethnic slur.
There was also some testimony about other employees who were terminated based
upon the Respondent’s workplace violence policy. Schnauffer testified that Respondent’s
Workplace Prevention Policy has a “zero tolerance” toward workplace violence, “whether it be
physical or verbally,” and she testified to some examples of employees who were terminated
based upon this policy. Timmy Rodriguez was terminated in April 2011 for threatening to come
in and kill his supervisor and Rafael Valesquez was terminated for making a “tape ball” and
throwing it at another employee’s head, causing him harm. Another employee, Disney Santos,
was terminated in November 2010 after he threatened his manager8 who asked him to punch in
at his designated work area, and Guillermo Berra was terminated in February 2010 for being
hostile to a supervisor and saying that he wanted to punch him. Jose Maldonado was
terminated in January 2010 for calling his supervisor a faggot and using other inappropriate

8 The “threat” was: “If you have an itch with Cubans, I can scratch it outside.”
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language toward him, and Ramon Ortiz was terminated in February 2010 for threatening to
punch out the teeth of a fellow employee. She testified that she is unaware of any employee at
the facility who engaged in a threat of violence and was not terminated. Counsel for the General
Counsel introduced into evidence a note to the file dated September 2010 regarding an
employee who was upset that the lock on his tool box had been cut. As a result, he told a
supervisor, “I’m going to come in here with a bat and start taking heads.” He was not terminated
as a result of this statement. Schnauffer could not recollect much of the incident except for the
lock having been broken on the employee’s tool box.
III. Analysis
It is initially alleged that the Respondent, by Orozco, interrogated Escobedo about his
Union activities, as well as the Union activities of his fellow employees. Escobedo testified that
on about February 20 he was approached by Orozco and Rangel, who had a blank Union
authorization card with an “X” marked across it. Orozco asked him if he recognized the card or if
he was giving out the cards; he did not respond. Rangel then told him that Silverman wanted to
know who was involved with the Union and to look at the card and to tell his manager if he
wanted to talk about it. Orozco testified that all managers had extensive training on what they
could and could not do during the Union campaign, and the “don’ts” included that they were not
to ask employees questions about the Union. She showed him the Union authorization card,
and he said that he didn’t have time for it. She did not ask him if he recognized the card or
whether he was distributing the card. Rangel did not testify. Although I found neither Escobedo
nor Orozco to be totally credible, I found Escobedo to be more credible than Orozco. While
there are some discrepancies between some portions of Escobedo’s testimony and his
affidavits about his conversations with superiors about the Union that is not surprising as these
conversations were fairly similar. On the other hand, I found that Orozco’s testimony was, at
times, conveniently selective and forgetful, most notably her testimony that she does not
recollect Coller telling her that Escobedo was the employee who was handing out Union cards
to the employees. Considering the “extensive” training of “dos and don’ts” that she testified that
all the managers participated in, it appears to me that this is a fact that she would clearly
remember. I therefore credit Escobedo’s testimony over that of Orozco, and find that she asked
him if he recognized the Union card or if he was giving them out.
The test for interrogations or discussions of this nature is whether the supervisor’s
statements “…would reasonably have a tendency to interfere with, restrain or coerce employees
in the exercise of their Section 7 rights, and not a subjective test having to do with whether the
employee in question was actually intimidated.” [Emphasis supplied] Multi-Ad Services, Inc.,
331 NLRB 1226, 1228 (2000). Although there are no other allegations of Section 8(a)(1)
conduct herein and Escobedo, apparently, continued to distribute Union authorization cards
after this conversation, I find that by asking him if he recognized the card or was distributing
them, he could reasonably be coerced by such a question, and that it therefore violated Section
8(a)(1) of the Act. Rossmore House, 269 NLRB 1176 (1984), Medcare Associates, Inc., 330
NLRB 935 (2000).
The remaining issue relates to the discharge of Escobedo on April 19. Was it caused by
his activities in support of the Union, as alleged by Counsel for the General Counsel, or did it
result from his threat to Coller while in Orozco’s office on April 18, as the Respondent defends?
This issue is to be judged by the guidelines formulated in Wright Line, 251 NLRB 1083 (1980).
Under that test, the initial issue is whether Counsel for the General Counsel has made a prima
facie showing sufficient to support the inference that protected conduct was a “motivating factor”
in the Respondent’s decision to terminate Escobedo. If that has been established, the burden
then falls to the Respondent to demonstrate that it would have terminated him even in the
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absence of his protected conduct. In order for Counsel for the General Counsel to satisfy his
initial burden herein, he must establish that the Respondent was aware of Escobedo’s card
solicitation activity and acted upon that knowledge by terminating him. Although there is no
evidence of Union animus other than the single Section 8(a)(1) violation discussed supra, there
is enough credible evidence herein to establish that his card solicitations was a motivating factor
in his termination. The “threat”9 that Escobedo directed at Coller was made in Orozco’s office in
the presence of Orozco and Aguirre. Yet, at the conclusion of that meeting, Orozco let both
Escobedo and Coller leave the office together and return to work. It was not until Coller returned
to Orozco’s office, allegedly crying, and told Orozco that Escobedo was involved with the Union
and gave him a Union card to sign, that the Respondent determined that Escobedo had to be
terminated because of the threat that he made to Coller. The timing thus clearly indicates that it
was not the threat that caused the discharge; rather, it was the knowledge of Escobedo’s Union
activity that caused it. Additionally, I found that the Respondent did not satisfactorily explain why
Escobedo was required to give a second statement to its Loss Prevention Department on April
19, right before being terminated. He had already given a statement to Orozco, and she had
discussed it with Schnauffer. Why was this second statement necessary, other than to entrap
Escobedo? I therefore find that Counsel for the General Counsel has satisfied his initial burden
herein.
The remaining issue is whether the Respondent has satisfied its burden that it would
have terminated Escobedo even absent his Union activity. I find that it has not. As Aguirre did
not testify, as between Escobedo, Coller and Orozco, I credit the testimony of Escobedo. I have
previously discredited Orozco, principally because of her incredible testimony that she does not
remember Coller telling her that Escobedo had been soliciting authorization cards for the Union,
and I found Coller’s testimony often contradictory and confusing. I therefore credit Escobedo’s
testimony that, after telling Orozco and Aguirre what Coller had said and done, he said, “This
man is provoking me to punch him,” and Coller said that he wasn’t afraid of him. While
Escobedo’s statement could lead to violence, it is not a direct threat; rather he was saying what
he felt, not what he was going to do. Prior to Coller and Escobedo leaving her office, she told
Coller that she didn’t want to know anymore about it and that he was to fix the merchandise and
move his forklift and, after he left, she told Escobedo to be patient with him because he was
trying to rehabilitate himself. These are not the type of statements that are made to an
employee who is going to be fired, unless there is an intervening fact, such as learning that he
was soliciting authorization cards for the Union, as happened herein. I therefore find that the
Respondent has not satisfied its burden under Wright Line, and that by terminating Escobedo
on April 19, the Respondent violated Section 8(a)(1)(3) of the Act.
Conclusions of Law
1. The Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by interrogating Escobedo about
his Union activities.
3. The Respondent violated Section 8(a)(1)(3) of the Act by terminating Segundo

9 I certainly do not mean by my Decision herein to minimize the necessity and importance of
rules against threats and Zero Tolerance rules regarding threats, especially in a large industrial
environment. However, in this situation, I find that Escobedo’s statement was not meant or
initially viewed as a direct threat, and that he was not terminated for that statement.
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Escobedo on about April 19, 2012 in retaliation for his Union activities.
The Remedy
The Respondent having discriminatorily discharged an Escobedo, it must offer
him reinstatement and make him whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010), enf. denied on other
grounds sub.nom., Jackson Hospital Corp. v. NLRB,, 647 F. 3d 1137 (D.C. Cir. 2011). I shall
also order the Respondent to file a special report with the Social Security Administration
allocating Escobedo’s backpay to the appropriate calendar quarters and to compensate him for
any adverse income tax consequences of receiving his backpay in one lump sum. Having found
that the Respondent also engaged in unlawful interrogation, in violation of Section 8(a)(1) of the
Act, I recommend that it be ordered to cease and desist therefrom, and to post a Notice to this
effect.
Upon the foregoing findings of fact, conclusions of law and on the entire record, I hereby
issue the following recommended10
ORDER
The Respondent, Bed Bath & Beyond, Inc., its officers, agents, successors and assigns,
shall:
1. Cease and desist from
(a) Interrogating employees regarding their activities on behalf of Local 888, UFCW, the
Union, or any other labor organization.
(b). Discharging or otherwise discriminating against its employees because of their
activities on behalf of the Union, or any other labor organization.
(c) In any like or related manner interfering with, restraining or coercing its employees in
the exercise of their rights as guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Offer Segundo Escobedo full and immediate reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position, without prejudice to his seniority or
any other rights and privileges previously enjoyed, and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimination against him in the manner set forth

10 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.
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in the remedy section of this decision.
(b) File a special report with the Social Security Administration allocating Escobedo’s
backpay to the appropriate calendar quarters and compensate him for any adverse income tax
consequences of receiving his backpay in one lump sum, as prescribed in Latino Express, Inc.,
359 NLRB No. 44 (2012).
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge of Escobedo, and within 3 days thereafter notify him, in
writing, that this has been done and that the discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such additional time as the 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 an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in Port Reading, New
Jersey copies of the attached notice marked “Appendix.”11 Copies of the notice, on forms
provided by the Regional Director for Region 22, 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 posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed 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 20, 2012.
(f) Within 21 days after service by the Region, file with the Regional Director 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.
Dated, Washington, D.C. January 8, 2013
_________________________________
Joel P. Biblowitz
Administrative Law Judge

11 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.”
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JD(NY)–02–13

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 representatives 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 question you about your activities on behalf of Local 888, UFCW (“the Union”),
or any other union.
WE WILL NOT discharge or otherwise discriminate against any of you for supporting the Union,
or any other union and WE WILL NOT in any like or related manner interfere with, restrain or
coerce you in the exercise of the rights guaranteed you by Section 7 of the Act
WE WILL Segundo Escobedo immediate and full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent position without prejudice to his seniority or other
rights and privileges previously enjoyed, and WE WILL make him whole for any loss of earnings
and other benefits resulting from his discharge, together with interest.
WE WILL within 14 days from the date of this Order, remove from our files any reference to the
discharge of Escobedo, and WE WILL, within 3 days thereafter, notify him that this has been
done and that the discharge will not be used against him in any way.
BED BATH & BEYOND, 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.
20 Washington Place, 5th Floor
Newark, New Jersey 07102-3110
Hours: 8:30 a.m. to 5 p.m.
973-645-2100.
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, 973-645-3784.