Bergensons Property Services

National Labor Relations Board - Board Decisions

Mar 31, 2003

338 N.L.R.B. 883 (N.L.R.B. 2003)

BERGENSONS PROPERTY SERVICES 883
Bergensons Property Services, Inc. and Service Em-
ployees International Union, Local 2028, AFL–
CIO. Case 21–CA–34528
March 31, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On February 11, 2002, Administrative Law Judge
James L. Rose issued the attached decision. The General
Counsel filed limited exceptions and a supporting brief.
The National Labor Relations Board had delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
set forth below,2 to modify the remedy, and to adopt the
recommended Order as modified and set forth in full.
The General Counsel excepts to the failure of the ad-
ministrative law judge’s proposed Order to provide for
notices to employees in both Spanish and English, in
view of the fact that a majority of the Respondent’s em-
ployees are primarily Spanish-speaking. We find merit
in the General Counsel’s exception and shall order that
the notice be in Spanish as well as in English. Three Sis-
ters Sportswear, 312 NLRB 853 (1993), enfd. 55 F.3d
684 (D.C. Cir. 1993). The General Counsel also requests
that the notice be mailed to the last known addresses of
Respondent’s employees who were employed since the
date that the unfair labor practices herein occurred.
Since the uncontradicted testimony of Respondent’s wit-
nesses establishes that the Respondent no longer has a
cleaning contract with the University of California at San
Diego, we shall order the Respondent to mail copies of
the notice to the employees. CleanPower, Inc., 316
NLRB 496, 498 (1995); Control Services, 315 NLRB
431, 459 (1994).3
CONCLUSION OF LAW
By threatening employees with loss of benefits be-
cause of their support for the Union, and by threatening

1 There were no exceptions to the judge’s findings that the Respon-
dent violated Sec. 8(a)(1) of the Act by threatening employees with loss
of benefits and discharge because they engaged in union activity and
Sec. 8(a)(3) and (1) of the Act by discharging employee Alejandra
Rodriguez.
2 The judge failed to include in his decision a “Conclusions of Law”
section that sets out the specific violations of Sec. 8(a)(1) and (3),
which he found in this case. In adopting the judge’s substantive find-
ings here, we shall provide below formal “Conclusions of Law” in
order to correct this inadvertent omission.
3 We shall also conform the judge’s recommended Order and notice
to the Board’s standard language.
to discharge and discharging employee Alejandra Rodri-
guez because of her support for the Union, Respondent,
Bergensons Property Services, Inc., has engaged in un-
fair labor practices affecting commerce within the mean-
ing of Section 8(a)(1) and (3) and Section 2(6) and (7) of
the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ber-
gensons Property Services, Inc., San Diego, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with loss of benefits or dis-
charge because they engage in activity on behalf of the
Service Employees International Union, Local 2028,
AFL–CIO, or other concerted activity protected by Sec-
tion 7 of the Act.
(b) Discharging or otherwise discriminating against em-
ployees because they engage in union or other concerted
activity protected by the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Alejandra Rodriguez full reinstatement to her former job,
or if that job no longer exists, to a substantially equivalent
position of employment, without prejudice to her seniority
or any other rights or privileges previously enjoyed.
(b) Make Alejandra Rodriguez whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against her in the manner set forth in the
remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge,
and within 3 days thereafter notify Alejandra Rodriguez
in writing that this has been done and that the discharge
will not be used against her 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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 San Diego business office copies of the attached no-
338 NLRB No. 127
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 884
tice marked “Appendix”4 in both English and Spanish, on
forms provided by the Regional Director for Region 21,
after being signed by the Respondent’s authorized repre-
sentative, and maintain the notices 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.
(f) Within 14 days after service by the Region, mail
signed copies of the attached notice in both English and
Spanish, at its own expense, to the last known address of
each employee employed by the Respondent at the Uni-
versity of California at San Diego location at any time
since April 25, 2001, and provide a copy of the mailing
to the Union and to the Regional Director for Region 21.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board had found that we vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT threaten you with loss of benefits or dis-
charge because you engage in activity on behalf of Ser-
vice Employees International Union, Local 2028, AFL–
CIO, or other concerted activity protected by Federal
law.
WE WILL NOT discharge or otherwise discriminate
against you because you engage in union or other con-
certed activity protected by Federal law.

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 within 14 days from the date of the Board’s
Order, offer Alejandra Rodriguez immediate and full
reinstatement to her former job, or if that job no longer
exists, to a substantially equivalent position without
prejudice to her seniority or any other rights or privileges
previously enjoyed.
WE WILL make Alejandra Rodriquez whole for the
losses incurred as a result of the discrimination against
her, with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the dis-
charge of Alejandra Rodriguez and within 3 days thereaf-
ter we will notify her in writing that this has been done
and that evidence of the unlawful discharge will not be
used against her in any way.

BERGENSONS PROPERTY SERVICES, INC.

Robert MacKay, Esq. and Sonia Sanchez, Esq., for the General
Counsel.
Craig A. Schloss, Esq., of San Diego, California, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at San Diego, California, on December 3 and 4,
2001, upon the General Counsel’s complaint alleging that the
Respondent discharged Alejandra Rodriguez in violation of
Section 8(a)(1) and (3) of the National Labor Relations Act (the
Act). The complaint also alleges two violations of Section
8(a)(1).
The Respondent generally denied that it committed any vio-
lations of the Act and affirmatively contends that Rodriguez
was rude and insubordinate during a company meeting of em-
ployees and was therefore discharged for cause.
On the record as a whole, including my observation of the
witnesses, briefs1 and arguments of counsel, I make the follow-
ing findings of fact, conclusions of law, and recommended
Order:
I. JURISDICTION
The Respondent is a California corporation engaged in pro-
viding nonretail cleaning and janitorial services. The Respon-
dent admits that in connection with its business it annually
provided services valued in excess of $50,000 for the Univer-
1 The Respondent’s brief was filed on January 10, 2002, 3 days after
the agreed-upon date that briefs would be submitted. Counsel for the
General Counsel therefore filed a motion that I reject the brief as being
untimely filed. Since there is no assertion that the General Counsel or
Charging Party would somehow be prejudiced if I receive the Respon-
dent’s brief, I deny the General Counsel’s motion. I have considered
the Respondent’s arguments.
BERGENSONS PROPERTY SERVICES 885
sity of California at San Diego (UCSD, which I take notice is a
public institution) and annually derived gross revenues in ex-
cess of $1 million. The Respondent denied that it is an em-
ployer engaged in interstate commerce, apparently on some
kind of a theory that it was doing business for a public institu-
tion which had some control over the manner in which it per-
formed its services and compensated its employees. Even if the
Respondent had offered sufficient facts to support this theory, I
would reject it. Management Training Corp., 317 NLRB 1355
(1995). Since the service and revenue amounts admitted are
sufficient to establish the Board’s jurisdiction, I conclude that
the Respondent is an employer engaged in interstate commerce
within the meaning of Section (2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent contends that it is without knowledge that
Service Employees International Union, Local 2028, AFL–CIO
(the Union) is a labor organization within the meaning of Sec-
tion 2(5) of the Act. I find that the Union in fact admits to
membership employees of employers engaged in interstate
commerce and represents those employees in matters involving
wages, hours, and other terms and conditions of employment.
It is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Respondent operates a janitorial service and employs,
for the most part, individuals of Mexican descent whose first
language is Spanish. Brothers Mark (or Marc) and Aram Mina-
sian are co-owners of the Respondent and together run the
business. Until about the time of the events here, Mark was in
charge of the UCSD account. He moved to the midwest to be
in charge of operations there and Aram replaced him at UCSD.
Although there had apparently been some union activity in
the past, it was not ongoing. Thus when the Union was con-
tacted by employees and met with them after work at UCSD
early in the morning of April 25, 2001,2 this was the first union
activity for about 2 years.
The meeting became known to the Respondent’s manage-
ment and, according to Aram, a meeting of employees was set
for the afternoon of April 25, “to actually get to the crux of
what was going on.” There is no question that the Respon-
dent’s meeting for employees on April 25 was in response to
their meeting with union representatives. Indeed, the Respon-
dent admits it.
The meeting started with Area Supervisor Daniel Wences
discussing safety and materials for about 10 minutes, during
which Alejandra Rodriguez stated her view that employees
were not being furnished adequate materials and supplies. She
said, “In my town, they say, washing the head of a donkey is to
waste soap and water.” Rodriguez testified that everyone, in-
cluding Wences, laughed. Wences testified that he was in-
sulted.
Then Minasian spoke, first noting that everyone was busy so
he would not take too much time, but this was his first chance

2 All dates are in 2001.
to talk to the employees. Rodriguez suggested that if he was
too busy, perhaps he should go back to his office and schedule
the meeting for another time.
During his short talk, Minasian announced that the Respon-
dent was instituting a raffle system whereby supervisors would
give employees raffle tickets when they saw an employee do
something commendable. Then the winner of the raffle each
month would receive extra money.3 Rodriguez suggested that
the Respondent could do better by giving all the employees a
raise. Such would be more fair.
Division Manager Evangelina Flores discussed insurance
and stated, in effect, that employees were not getting insurance
because of the Union. She also told Rodriguez to calm down,
asked if Rodriguez was speaking for other employees, and
when the meeting ended, told Rodriguez that she should be
grateful and if she was the boss, she would fire Rodriguez.
Unquestionably, Rodriguez made numerous comments at
this meeting. She testified these comments were always re-
spectful and she always asked permission before speaking. The
Respondent’s witnesses testified that she was rude, had insulted
Wences by calling him a donkey, and was generally insubordi-
nate. The Respondent maintains that it had no alternative but to
discharge her and she was so notified the next day.
B. Analysis and Concluding Findings
1. Threats
It is alleged that Minasian and Flores (a) threatened employ-
ees with loss of benefits and, (b) threatened employees with
termination because of their support for the Union.
Rodriguez testified that Flores said, during the course of her
comments, “It has not been possible to get that insurance pro-
vided to you because the union has been preventing the busi-
ness from signing.” Flores did not further explain what she
meant, but it is clear that she implicitly threatened employees
that any activity on behalf of the Union caused them not to get
benefits. Such a conclusion is not negated by Flores’ testi-
mony.
Flores testified that one employee “asked what happened
with the insurance and I said that it was being held and I felt
that there were politics because the Union was involved and
were making sure that we didn’t get the insurance money. I
might have mentioned something like that.”
I conclude that Flores threatened employees with loss of
benefits if they were to engage in activity on behalf of the Un-
ion and thereby violated Section 8(a)(1).
After the discussion about insurance, Rodriguez testified, “I
said, Ms. Ava, I would like to clarify something that when I
take the floor, it is something personal, as far as my salary is
concerned. She said, you again? I said, yes, ma’am, because I
started out working at $5.75. When they hired me, they told me
that they were going to give me a raise of 25 cents. I told her I
finished my six months and my salary was not raised and she,
upset, said to me, if you do not like it, leave. What are you
3 The General Counsel does not contend that Minasian’s announce-
ment of the raffle constituted an unlawful promise of a benefit, nor was
it litigated as such.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 886
doing here? The way that you are talking, why do you not go
to the union?”
The question Rodriguez asked about her wages, in the pres-
ence of other employees and during a general meeting where
terms and conditions of employment were discussed was con-
certed activity protected by the Act. See Avery Leasing, 315
NLRB 576, 580 fn. 5 (1994). Thus telling Rodriguez “to
leave” if she did not “like it” was a threat of discharge violative
of Section 8(a)(1).
In addition, at the end of the meeting, Flores told Rodriguez
that if she was the boss, she would fire Rodriguez. Rodriguez
told her to go ahead. In this context, Flores statement was
threat of discharge in violation of Section 8(a)(1).
2. The discharge
Unquestionably Rodriguez was an outspoken critic of the
Respondent at the employee meeting on April 25. In fact, she
spoke so much that at one point Flores asked if she was the
leader. Rodriguez denied that she was, but was the most vocal
of the employees. With her story about washing a donkey, she
questioned the sincerity of Wences in his discussion about sup-
plies. She questioned the fairness of the proposed raffle, and
she asked why she had not received the wage increase she had
[been] promised. In short, on numerous occasions she chal-
lenged the Respondent on matters involving wages, hours and
other terms and conditions of employment. And she exchanged
words with Flores as the employees were leaving the meeting.
Rodriguez voiced her concerns at a meeting called by the
Respondent for the express purpose of discussing conditions of
employment and countering whatever the Union had told em-
ployees early that morning. In doing so, she was clearly en-
gaged in concerted activity protected by the Act. See Enter-
prise Products, 264 NLRB 946 (1982). In this context, I con-
clude that her termination was violative of Section 8(a)(1).
In addition, I conclude that her discharge was meant to dis-
courage activity on behalf of the Union and was therefore
violative of Section 8(a)(3). The discharge occurred 1 day after
the Respondent learned that employees had met with represen-
tatives of the Union. Minasian even admitted that he called the
meeting of employees in reaction to their having met with the
Union, from which I infer that he was concerned about, and
opposed to, their union activity. Flores suggested that Rodri-
guez was the leader—a reasonable assumption considering that
she repeatedly challenged statements by management. The
Respondent offered no evidence that anyone had ever been
disciplined, much less discharged, for being rude. Finally, even
accepting the Respondent’s version of her behavior, discharge
seems patently excessive and unreasonable, from which I infer
that the true motive lie elsewhere. Shattuck Denn Mining
Corp., 362 F.2d 466 (9th Cir. 1966).
Thus I conclude that Rodriguez was unlawfully discharged
and she should be ordered reinstated unless by her actions Rod-
riguez lost protection of the Act or rendered herself unfit for
further employment.
Such is the crux of the Respondent’s defense. The Respon-
dent argues that Rodriguez was loud, rude, insulting, and disre-
spectful. Therefore the Respondent had no choice but to dis-
charge her. Minasian testified that she was discharged because:
“It was the nature of how Ms. Rodriguez was conducting her-
self in the meeting. All of the things that she discussed during
the meeting could have been handled at a later date. They
weren’t germane to having to be, you know, interrupting and
breaking in on everybody’s else’s—especially my presentation.
She was just patently disrespectful and in retrospect, when we
were looking at it after the meeting, it looked as though she was
doing it on purpose and putting us in a situation where we had
to make a choice and, you know, it was subverting our author-
ity and disrupting the meeting and taking us off course and then
challenging us to fire her.”
In effect, Minasian testified that employees had no right to
question management’s view of matters relating to working
conditions. It was his position that her comments should have
been made at another time. I do not accept that the Respondent
can so limit employees’ participation in a meeting called by
management for the avowed purpose of countering whatever
union representatives may have told employees.
No doubt that even in the context of concerted or union ac-
tivity an employee can engage in such egregious and opprobri-
ous behavior as to lose protection of the Act or be deemed unfit
for further employment. But the Board has long held, with
court approval, that in such situations some tolerance must be
allowed, where the allegedly insubordinate behavior is part of
the res gestae protected activity. See Postal Service v. NLRB,
652 F.2d 409 (5th Cir. 1981), and cases cited therein. Thus
recently, the Board held that the line had not been crossed
where, in a company meeting of employees, the discharged
employee used abrasive and vulgar language directed toward
the plant manager. CKS Tool & Engineering, Inc. of Bad Axe,
332 NLRB 1578 (2000).
While I believe that Rodriguez was outspoken, even loud, I
do not credit the Respondent’s witnesses. I believe they exag-
gerated the actions of Rodriguez. For instance, Minasian pur-
chased soft drinks for the employees. When the meeting was
over, witnesses for the Respondent testified that Rodriguez
“threw (her) coke on the table,” as if she intended to hurt some-
one, or in fact did so or splattered the contents. Rodriguez
admitted that she gave the coke back, but testified that she did
not “throw” it. I credit Rodriguez. I believe that the Respon-
dent’s witnesses attempted to make out Rodriguez in the worst
possible light in order to justify the action of discharging her.
Even accepting the Respondent’s characterization of her be-
havior, which I am not inclined to do, such falls short of losing
protection of the Act. And that it is issue here. This is not a
case where the employee’s act might, in some other context,
justify discharge. The actions of Rodriguez arose out of the
incipient union campaign and were otherwise concerted and
protected by the Act. Thus the only question is whether she
stepped over the line and lost the Act’s protection or rendered
herself unfit for further employment. For the reasons given
above, I conclude not. Therefore, I conclude that by discharg-
ing Rodriguez the Respondent violated Section 8(a)(1) and (3)
of the Act, and the traditional remedy ordered.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I conclude that it should be ordered to cease
BERGENSONS PROPERTY SERVICES 887
and desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act, including offering
reinstatement to Alejandra Rodriguez and make her whole for
any loss of earnings and other benefits in accordance with the
provisions F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
[Recommended Order omitted from publication.]