Blue Diamond Growers

National Labor Relations Board - Administrative Judge Opinions

May 31, 2007

20-CA-032930 (N.L.R.B. May. 31, 2007)

JD(SF)–16–07
Sacramento, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
CALIFORNIA ALMOND GROWERS
EXCHANGE d/b/a BLUE DIAMOND GROWERS
and Cases 20-CA-32930
20-CA-33195
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION, LOCAL 17, AFL-CIO
David B. Reeves, Esq., and Matt Peterson, Esq.,
San Francisco, CA, for the General Counsel.
Kate Hallward, Esq., (Leonard Carder)
Oakland, CA, for the Charging Party.
Raymond Lynch, Esq., and Molly Lee, Esq.,
(Hanson, Bridgett, Marcus, Vlahos & Rudy)
San Francisco, CA, for Respondent.
DECISION
Statement of the Case
JAY R. POLLACK, Administrative Law Judge: I heard this case in trial in Sacramento,
California, from January 16 through January 19, 2007. On March 20, 2006, International
Longshore and Warehouse Union, Local 17, AFL-CIO, (the Union) filed the charge in Case 20-
CA-32930 alleging that California Almond Growers Exchange d/b/a Blue Diamond Growers
(Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended
(29 U.S.C. Section 151 et seq., herein called the Act). The Union filed the amended charge on
October 23, 2006. On this same date, the Regional Director for Region 20 of the National Labor
Relations Board issued a complaint and notice of hearing against Respondent alleging that
Respondent violated Section 8(a)(1) and (3) of the Act. Respondent filed a timely answer to the
complaint denying all wrongdoing.
On November 6, 2006, the Union filed the original charge in Case 20-CA-33195 and
amended this charge on December 20, 2006. On December 26, 2006, the Acting Regional
Director for Region 20 issued an order consolidating the two cases and a consolidated
complaint and notice of hearing alleging, in addition to the above allegations, that Respondent
also violated Section 8(a)(1), (3) and (4). Respondent filed a timely answer to the consolidated
complaint denying all wrongdoing.
The parties have been afforded full opportunity to appear, to introduce relevant
evidence, to examine and cross-examine witnesses and to file briefs. Upon the entire record,
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from my observation of the demeanor of the witnesses1 and having considered the post-hearing
briefs of the parties, I make the following:
Findings of Fact
I. Jurisdiction
Respondent, a California corporation with an office and place of business in
Sacramento, California, has been a grower-owned cooperative engaged in processing and
selling almonds and almond products on a non-retail basis. During the twelve months prior to
issuance of the complaint, Respondent sold and shipped goods valued in excess of $50,000
directly to customers located outside the State of California. Respondent admits and I find that
Respondent is an employer engaged in commerce within the meaning of Section 2(2)(6) and (7)
of the Act.
Respondent admits and I find that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. The Alleged Unfair Labor Practices
A. Issues
The consolidated complaint alleges that Respondent unlawfully discharged employees
Leo Esparza and Ludmilla Stolyorova in order to discourage union membership and activities in
violation of Section 8(a)(3) and (1) of the Act. The consolidated complaint also alleges that
Respondent unlawfully issued a written warning to employee Cesario Aguirre in order to
discourage union membership and activities in violation of Section 8(a)(3) and (1) of the Act
and, because Aguirre testified for the Union before the NLRB in violation of Section 8(a)(4) and
(1) of the Act. Respondent avers that Esparza and Stolyorova were discharged and Aguirre
was issued a written warning for violations of company rules and not for any reasons prohibited
under the Act.
B. Background
Respondent, a California corporation, is a cooperative of almond growers with a
manufacturing facility in Sacramento, California. It is engaged in the business of processing and
selling almonds and almond products on a non-retail basis. There are approximately 600
production and maintenance employees at the Sacramento facility.
Following an organizing drive by the Union on April 28, 2005, Respondent filed a
representation petition in Case 20-RM-2857 and a charge in Case 20-CP-1078 seeking an
expedited election in a unit of its Sacramento facility employees. Thereafter, the Union
disclaimed interest in representing the employees and the petition and charge were dismissed
on May 9, 2005.

1 The credibility resolutions herein have been derived from a review of the entire testimonial
record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses,
and the teachings of NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). As to
those witnesses testifying in contradiction to the findings herein, their testimony has been
discredited, either as having been in conflict with credited documentary or testimonial evidence
or because it was in and of itself incredible and unworthy of belief.
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In a prior decision involving these parties, JD(SF)-14-06, based on a hearing held during
the period December 5 through December 8, 2005, issued on March 17, 2006, and adopted by
the Board in the absence of exceptions on May 10, 2006, I found that Respondent in 2005, in
response to an organizing campaign by the Union, unlawfully threatened employees with loss of
scheduled wage increases, loss of benefits including pension benefits, threatened plant closure
and loss of employment and unlawfully interrogated employees about their union activities. In
addition, I found that Respondent discharged two employees and warned a third employee for
rule violations by applying its rules more strictly in order to discourage the employees’ union
activities and union membership.
Respondent's Handbook for Hourly Employees provides, at Section 4.10 Rules of
Conduct, various rules applicable to employees. Included in these rules is “Section I – House
Rules.” Respecting these rules, the handbook states:
The first infraction of the House Rules under this section will result in immediate
suspension and probable termination. In the unusual event of a written warning
issued in lieu of termination, the written warning will count under the discipline
standards established under the Section II – House Rules.
The enumerated Section I rules include:
15. Misappropriation and/or unauthorized possession of Blue Growers’ or other
employees’ personal property or attempting to remove such property from Blue
Diamond Growers’ premises. (sometimes referred to as the misappropriation
rule.)
The rules also include “Section II – House Rules” which are explained in the handbook
as follows:
A violation of rules in this section will result in a written warning. You will be
subject to termination for receiving any of the following:
1. Three (3) or more written warnings in any 12 working month period, or
2. Six (6) or more written warnings in any 36 working month period. or
3. Two (2) written warnings in a season at the outside receiving stations
NOTE: These limits do not apply to employees during their introductory period
and do not bind the Company to any progressive discipline process in any case
where the Company deems such process to be inappropriate.
The enumerated Section II rules include:
1. Failure to comply with the requirements of the Food and Drug
Administration’s “Good Manufacturing Practices.”
2. Failure to report an on-the-job injury immediately to your supervisor.
3. Failure to report a disease or condition which may endanger the health
of employees or contaminate any Blue Diamond Growers products.
Respondent also maintains a written policy respecting the “Disposition of Surplus
Property” which reserves the disposition of all such property to the discretion of management.
Scrap materials under the policy may be given away without charge to employees upon request
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by completing a specific form dealing with release of surplus property. Scrap materials may not
be removed from the premises without a proper authorization form approved by an appropriate
manager. Defective and or dangerous items may not be sold but rather should be destroyed.
Finally, Respondent has at relevant times maintained a rule, at Section 7.21 of the
Employee Handbook under the subheading “Personal Safety Equipment” which provides:
Wear safety glasses, goggles, or face shields whenever there is exposure to
injury from flying particles or splash. Eye protection is required when grinding,
cutting, welding or using air tools, including blowing down.
C. Facts
1. The Discharge of Leo Esparza
a. The Events Respecting Esparza
In the summer of 2005 Leo Esparza was an employee with over 20 years of service
working swing shift in Respondent’s Distribution Center as a lift truck operator. His immediate
supervisor at relevant times was David Nichols, the Distribution Center Section Manager who
was under the direction of Warehouse Manager Jerry Spain. In Esparza’s work area,
Respondent maintained a dumpster. It was Esparza’s habit to look in the dumpster before
depositing items in the dumpster.
Esparza was listed on the Union’s list of 58 in plant union organizers provided
Respondent in April 2005. He was also one of the few employees on his shift in his work area
to wear a yellow shirt on Fridays indicating support for the Union. He testified that his support
for the Union was known to at least some of Respondents agents.
Respondent’s security staff had observed Esparza on the evening of August 30, 2005,
placing something in the trunk of his car which seemed suspicious and determined to place him
under observation. The following night, August 31, 2005, during a work break, Esparza
discovered and removed from the dumpster a broken weed wacker, a broken broom handle and
a cardboard tube or spindle which held residue of shrink wrap plastic. He had them in an area of
the premises and discussed the operability of the weed wacker with other employees. Later that
evening Esparza had a brief conversation with lead person Linda Carter. He told Carter he had
found a weed wacker and asked Carter if she had any use for such an item. Carter told him she
already had one.
Esparza thereafter proceeded to his car with the items. Respondent’s security staff
confronted Esparza by his car and discovered he had the noted items. Esparza readily noted
he had taken the items from the dumpster. He was asked if he had gotten permission to take
the items and he said he did not have permission. Security, in the absence of supervisor Nichols
who was working a split shift schedule during this period and was not then at work, contacted
Carter who also met with security. Esparza was instructed to return the items taken until proper
authorization to remove them was obtained. Security thereafter prepared an incident report
which was circulated to management. The security department’s “Miscellaneous
Incident/Observation Report” dated September 2, 2005, in essence recited the noted events,
including a confirmation that the weed wacker had been disposed of by a gardener due to a
severely ruptured gas tank.
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On September 1, 2005, David Nichols and Jerry Spain testified they met to discuss the
incident and Esparza approached them. They spoke with Esparza. According to an e-mail that
Nichols sent later to Spain, Esparza acknowledged that he knew he needed permission to take
items and he should have asked before taking the item. Further, Nichols recalled one prior
unspecified instance in which Esparza asked for permission before taking Respondent’s
property. Esparza recalled that he spoke with Nichols that day. Nichols asked him if he knew he
needed permission to take the items and Esparza answered that the items were trash and that
he did not have permission to take the items. Esparza conceded that he told Nichols he knew
he needed to get permission to take the items but had not done so. At the end of the
conversation, after Esparza left, Spain told Nichols to conduct an investigation.
Esparza testified to a litany of interviews with management agents regarding the matter
in which the same theme was repeated, that he should have gotten permission to remove the
items and that he had not done so. He recalled the events were reduced to writing and he
signed the writing. He insisted however that in fact he did not believe he had been obligated to
obtain permission before removing the items and that he made such statements during this
process “to save my job.”
Nichols reviewed the security tapes involved, spoke with Linda Carter and asked her to
prepare a summary of the events and e-mail it to him. She did so. On September 6, 2005, after
having spoken to Carter and considering the matter Spain informed George Johnson, Director
of Employee Services, that he was suspending Esparza pending further investigation by
Employee Services. Spain directed Nichols to suspend Esparza that afternoon and he did so.
Johnson interviewed Spain and Nichols on September 8, 2005, and spoke with Esparza
on September 9. Esparza recalled that he was asked if he had received permission to take the
items and said he had not. He had little further recollection of the meeting other than
remembering he was asked to sign a document. Johnson testified that Esparza told him that he
knew permission was needed, that he had obtained such permission from supervisors on
previous occasions, and offered no excuse for his conduct other that that he could not find a
supervisor at the time.
Johnson met with Spain and Nichols again on or about September 12, 2005, sharing his
investigatory notes and asking if they were correct. Each said they were and recommended to
Johnson that Esparza be terminated. Johnson then met with Plant Manager Kennedy, and
Manager Hills in a management review of the situation. Each reviewed the notes and reports
and the history of enforcement of the Section I, Rule 15 or misappropriation rule quoted supra.
They agreed with the recommendation to terminate Esparza. Respondent terminated Esparza
on September 21, 2005. The relevant charge was filed on March 20, 2006.
b. Additional Circumstances Relevant to the Application of the Rule to Esparza
Respondent’s rules, including the misappropriation rule is part of the Handbook for
Hourly Employees which is issued to employees at the time of their hire. Further, after the
discharge of the employee Gutierrez as discussed below, Respondent conducted a
departmental meeting in which the misappropriation rule was discussed. This meeting was
attended by Esparza. Spain testified he informed employees “they had to have written
permission to take anything from Blue Diamond including stuff that was found in the trash, that
absolutely nothing could be removed without written authorization.” Esparza testified respecting
the meeting with a less certain recollection and, while his testimony was variant during the
examination, concluded his testimony with the position that he did not hear any speaker
specifically state the misappropriation rule applied to taking trash from a dumpster.
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At the hearing the parties stipulated to the following:
For the years 2001 through 2006, there have been 76 incidents of discipline
involving a Section 1 violation. Of these 76 incidents, 43 have resulted in
termination, and 33 have resulted in discipline short of termination, i.e. warnings
or suspensions.
Between 2001 and May 2006, Dan Ford maintained 407 liability release forms in his
files.
The General Counsel adduced evidence that some of the Respondent’s employees had
taken discarded items home without incident. In some cases employees had been observed
doing so by supervisors or security personnel without incident or consequence. There was also
evidence offered that oral permission to take home items was sometimes given by
Respondent’s agents rather than written permission.
Prior to the termination of Esparza, Respondent had discharged 4 employees for
violation of its misappropriation rule. Two individuals were discharged in 2003 and 2005
respectively for fraudulent use of Respondent’s credit card and for stealing a book from an
employee’s office. Another employee was discharged in the summer of 2002 for “taking cans
and packets of almonds and placing them in your pockets, as well as opening packets and
eating almonds during working hours.” A fourth employee, Norberto Gutierrez, was discharged
in June 2003 when caught by security attempting to remove 10 cases of 12 ounce cans of
almonds that had been discarded in a trash dumpster at a time he had neither asked for nor
received a property pass or permission to take the almonds..
2. The Discharge of Ludmilla Stolyorova
a. The Events Respecting Ludmilla Stolyorova
Ludmilla Stolyorova, became an employee of Respondent in 2001 and was well
regarded. She was also at relevant times an open Union supporter who wore the Union
supplied yellow shirt at the facility one day a week.
On April 27, 2006, Stolyorova at work noticed a janitor passing by carrying used
cardboard boxes which had held vendor product to the trash. She ask for and received two of
the boxes from the janitor and placed them near an entrance. She at no time received
permission from Respondent’s agents to take the items. At the end of her work period, she
exited the facility, taking the two boxes with her. During this process she was observed by
fellow employee Pearl Ortiz who asked her if she had obtained permission to remove the items.
When Stolyorova said she had not, Ortiz warned her that she could be fired for taking the items
without permission. Other employees observing her exit exclaimed: “Hope she has permission.”
Other employees shouted to her repeatedly: “You better get permission.”
The next morning, April 28, 2006, an employee reported Stolyorova’s actions to her lead,
adding that she though Stolyorova should be fired. The Lead received a like report from
another employee and in turn reported what she had learned to Manager Don King. Mr. King
confirmed the reports received and spoke to Stolyorova. He described the conversation:
I talked to Ludmilla [Stolyorova] and I asked her if she had taken cartons the day
before. She told me that she had and that the next statement she told me is, why
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I care, because they were for the trash. And I talked to her about, you know, that
we had just discussed this in our meeting the previous week, that she had to get
permission to remove anything from the plant. She again asserted that they
were something that was headed towards the trash and she didn't feel she
needed permission to take it. … She asked me if people needed permission to
collect aluminum cans at the plant…. I told her I didn’t feel that they did, because
the aluminum cans were something that employees had dranken (sic) from and
set them off to the side, or they had put them in the trash and something that
they didn’t -- that didn't belong to [Respondent].
King then drafted a memo summarizing these events and sent it to George Johnson. King met
with Johnson that afternoon. Johnson instructed King to suspend Stolyorova pending further
investigation by the Employee Services department. Stolyorova had left work at that time, but
the next morning upon her return, King and Johnson told her she was suspended. Johnson told
her to prepare notes respecting the incident and that he would be in contact with her.
Johnson continued his investigation, interviewing Stolyorova on May 3, 2006. She also
provided a written statement. Stolyorova in essence repeated her earlier report and noted that
she discounted the comments of a fellow employee telling her she needed permission to take
the boxes because she believed the employee was referring to the contents of boxes rather
than simply empty boxes. Johnson interviewed the employees who had made comment to
Stolyorova. These individuals both confirmed their earlier reports regarding their comments to
Stolyorova and confirmed that they each understood that the rule was that an employee had to
have the permission of a supervisor to remove anything from the facility.
Thereafter, Johnson met with Plant Manager Kim Kennedy, The two reviewed the
matters revealed in the investigation and concluded Stolyorova’s conduct violated Rule 15,
Johnson recommended her termination, Kennedy agreed. Johnson terminated Stolyorova on
May 4, 2006. Both Kennedy and Johnson denied having any knowledge of Stolyorova’s union
activities during these events.
b. Additional Circumstances Relevant to the Rule
A one-hour safety meeting attended by Stolyorova and her fellow department employees
was conduct on April 21, 2006 – just days before the Stolyorova events described above.
Manager Don King testified he reminded the employees they needed to get permission to
remove anything from the plant, including from the trash or dumpsters. Lead Ana Avila
testified King told the employees that anything they wanted to take out of the building needed a
permission slip. She recalled he mentioned taking cartons, anything out of the dumpster. Other
employees testified on behalf of the General Counsel that King said in the meeting that
employees needed a permission slip to take anything out of the building, but that he did not
specifically mention the trash or the dumpsters.
3. The Written Warning of Cesario Aguirre
Cesario Aguirre is and has been an employee of Respondent for 28 year as of the time
of the hearing. His last 10 years of service has been as a mechanic in the maintenance
department. His name was on a list of 58 employees sent to Respondent in mid April 2005
naming the Union’s in-plant union organizers and he wore the Union provided yellow shirt each
Friday in support of the Union. Further he testified in December 2005 in the hearing underlying
my earlier decision, cited supra, concerning a May 5, 2005 conversation with Manager and
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Safety Trainer Martin Basquez, Maintenance Department Manager Dan Ford, and Chris Silva.
His testimony was credited and a violation of the Act sustained based thereon.
In 2002 Mr. Aguirre was seriously injured in an on the job accident in the maintenance
department. Respondent’s witnesses testified this event motivated them to improve safety
procedures. In consequence they identified safety issues on the job and instituted an intensive
safety campaign. Part of that campaign involved discussion of the required and proper wearing of
personal protective equipment such as eye goggles. Employees were instructed to report all
safety problems. In addition, various equipment including drill presses were marked with signs
noting: “Warning – Safety glasses or goggles must be worn while operating this equipment.” The
General Counsel adduced evidence challenging the assertion that the sign was posted before the
warning was issued. Respondent’s witnesses testified the sign had been up before the event.
On January 9, 2006, Aguirre was operating the drill press wearing safety glasses. He
removed his glasses and placed them on an adjacent table and then inspected the depth of a hole
in the item he was drilling. The drill was withdrawn from the item being drilled, but the press was
on and the chuck and drill were rotating. Maintenance Department Supervisor Dan Ford
observed this event, approached Aguirre and told him to wear his safety glasses. Aguirre replied
that he had just taken them off to check the work and forgotten to put them back on. Ford
thereafter contacted Basquez, Aguirre’s direct supervisor, and reported the matter to him.
Basquez in turn contacted Department Lead Roger Wiseman and instructed him to learn the
specifics. Wiseman spoke to Aguirre who reported as above. Basquez asked Wiseman and Ford
to prepare statements and wrote one himself. He also contacted his supervisor Daryl Nelson to
discuss the matter. Nelson and Basquez agreed that Aguirre had committed a safety violation. In
consequence Basquez drafted a written warning.
The next day, Basquez called Wiseman, Ford and Aguirre into his office and asked
Aguirre to explain the event. Aguirre stated he wears his safety goggles all the time but had
taken them off only for a very brief period to inspect the depth of the hole being drilled and the drill
was not engaged. Basquez gave Aguirre the warning and asked him to sign it but Aguirre
refused. The warning in the comment portion stated:
On January 9, 2006 at approximately 10:00 am, Dan Ford, Maintenance Manager
was walking through the main shop and saw you drilling on the drill press without
your safety glasses on. Dan noticed your safety glasses were sitting on the drill
press table next [to] you. When he told you that you needed to wear your safety
glasses while using the drill press, you stated you had just taken them off. You are
required to wear your safety glasses at all times while using the drill press. Not
wearing you[r] safety glasses is a violation of House Rules section II number 8
regarding safety rules, signs, or instructions.
In the period from March 2004 through January 11, 2006, Respondent had issued
written warnings to five other employees for failure to wear safety eye covering and had also
issued oral warnings. In some cases the written warnings were issued after oral warnings.
D. Analysis and Conclusions
1. The Discharge of Leo Esparza
In cases involving dual motivation, the Board employs the test set forth in Wright Line, A
Division of Wright Line, Inc., 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied, 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462
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U.S. 393, 399-403 (1983). Initially, the General Counsel must establish by a preponderance of
the credible evidence that anti-union sentiment was a “motivating factor” for the discipline or
discharge. This means that General Counsel must prove that the employee was engaged in
protected activity, that the employer knew the employee was engaged in protected activity, and
that the protected activity was a motivating reason for the employer’s action. Wright Line, supra,
251 NLRB at 1090. Unlawful motivation may be found based upon direct evidence of employer
animus toward the protected activity. Robert Orr/Sysco Food Services, 343 NLRB No. 123, slip
op. at 2 (2004). Alternatively, proof of discriminatory motivation may be based on circumstantial
evidence, as described in Robert Orr/Sysco Food Services, supra:
To support an inference of unlawful motivation, the Board looks to such factors
as inconsistencies between the proffered reasons for the discipline and other
actions of the employer, disparate treatment of certain employees compared to
other employees with similar work records or offenses, deviations from past
practice, and proximity in time of the discipline to the union activity. Embassy
Vacation Resorts, 340 NLRB No. 94, slip op. at 3 (2003).
If the General Counsel has satisfied the initial burden, the burden of persuasion shifts to
Respondent to show by a preponderance of the credible evidence that it would have taken the
same action even in the absence of the employee’s protected activity. If Respondent advances
reasons which are found to be false, an inference that the true motive is an unlawful one may be
warranted. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Limestone
Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). However,
Respondent’s defense does not fail simply because not all the evidence supports its defense or
because some evidence tends to refute it. Merrilat Industries, 307 NLRB 1301, 1303 (1992).
Ultimately, the General Counsel retains the burden of proving discrimination. Wright Line, supra,
251 NLRB at 1088, n. 11.
The General Counsel has established both Esparza's union activities and the knowledge
or constructive knowledge of those activities by Respondent. There is no doubt that Esparza
took the actions for which he was terminated. The issue as to Esparza is whether or not the
conduct was the reason for the discharge rather than his protected union activities. It is
therefore the termination process that must be examined. The termination of Esparza involved
multiple steps and multiple actions by the agents of Respondent involved. Each must be
evaluated under the standard set forth above.
First, I find that the actions of the security personnel did not involve disparate treatment
of Esparza compared to other employees. Thus, I find that the initiation of the meetings
respecting the incident was not improper. I further find that the investigation of events as
described above followed consequentially from the actions of security and the issuance of a
security report and was not evidence of disparate treatment of Esparza or evidence of actions
taken against him because of his union activities or to discourage the union activities of others.
Having gotten past the investigative process, scrutiny must fall on the discharge
recommendations of Respondent’s agents, as described above, that ultimately caused the
discharge. Here the arguments regarding the misappropriation rule and its application both
historically and as applied to Esparza ripen. I have considered the demeanor of the witnesses,
the arguments of the parties on brief and the record as a while on this critical issue. I find that
the General Counsel has not met his initial burden to show that anti-union sentiment was a
“motivating factor” for Esparza’s discharge.
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I reach this conclusion because I parse the history of enforcement of the
misappropriation rule into two rough categories. The first category of rule application is the
shop floor informality of employees and leads or first level supervision who, as the General
Counsel’s evidence shows, did not with strict consistency require written or even oral
permission to allow employee removal of discards from the premises. The second category of
rule application is the actions of higher management when confronted with more formal post
investigation situation such as that presented herein. At that secondary level – and I have found
that the Esparza incident reached that level benignly and not by improper actions of
Respondent – Respondent has demonstrated that the rule is enforced more strictly and
consistently. Considering the context, I find that the General Counsel has not been able to
demonstrate by a preponderance of the credible evidence that the discharge recommendations
involving Esparza were based on anti-union sentiment. Finally, given the recommendations
made, I find there was no anti-union animus in the final discharge decision taken or its being
carried out as set forth above.
Given this finding, it follows that the General Counsel has failed to prove that Mr.
Esparza was fired for union activities as alleged in paragraph 6 of the complaint. Therefore I
shall dismiss those complaint paragraphs that apply to Esparza.
2. The Discharge of Ludmilla Stolyorova
My analysis of the discharge of Stolyorova applies the same analytical framework used
to consider the discharge of Esparza. I find the General Counsel has established her union
activities and that her union activities were known to Respondent’s first level supervision and
therefore constructively known by higher management even given the testimonial denials noted
above.
Ms. Stolyorova’s circumstances involved Respondent actions in several steps.
Considering the events up to the point King was involved, I find there is no evidence that anti-
union or protected conduct informed the process. Thus I find that it must be the actions of King
and beyond that are to be scrutinized.
Considering the testimony of the witnesses and their demeanor as well as the
arguments of the parties and the record as a whole, I find that King took the actions he did
based on his understanding of the rule and his belief that Stolyorova, who attended the earlier
meeting and heard what King said about misappropriation, knew or should have known she was
breaking the rule in behaving as had been reported to him.
I further find that, once the matter was placed before the higher management agents by
King, and for the same reasons as set forth in my analysis of the Esparza discharge supra,
their strict view of the misappropriation rule led first to the broader investigation of the underlying
event and then to recommendations to discharge Stolyorova and the subsequent decision to
discharge her. I credit the testimony of the decision maker that their conduct turned on their
application of the misappropriation rule. I therefore find that the General Counsel failed to
establish consistent with the analytical framework set forth supra, that Stolyorova was
discharged in violation of the Act.
Given this finding, it follows that the General Counsel has failed to prove that Stolyorova
was fired for union activities as alleged in paragraph 6 of the complaint. Therefore I shall
dismiss those complaint paragraphs that apply to Stolyorova.
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3. The Written Warning of Cesario Aguirre
The General Counsel has established Aguirre’s union activities, his testimony in the
earlier unfair labor practice proceeding and the fact that his testimony was not supportive of
Respondent in that proceeding. The warning he received is established as well at the
circumstances surrounding it. The same analytical approach as undertaken in resolving the
earlier allegations applies here.
The parties argued the application of the quoted safety rule to the situation presented.
The General Counsel takes the position, as did Aguirre in the disciplinary process, that the rule
did not apply to a situation where a drill press, while running in the sense that the drill and
chuck were spinning under power, was not running in a manner involving a need for safety if it
did not have its drill in contact with the item being drilled. Thus to the General Counsel and the
Charging Party, the cited safety rule did not apply to Aguirre’s conduct but rather had been, in a
sense forced on the situation revealing the false and pretextual nature of the justification. Such
an unreasonable and pretextual rationale for the Respondent’s actions, the General Counsel
argues, supports a finding that the true reason for the warning was the employee’s union
activities and his testimony at the unfair labor practice hearing.
Considering the testimony of the witnesses and their demeanor as well as the
arguments of the parties and the record as a whole, I reject the General Counsel’s argument
that the safety eye covering rule did not reasonably or logically apply to Aguirre’s situation as
observed by Maintenance Department Supervisor Dan Ford. Rather, I find in agreement with
Respondent, that the safety rule applied to require wearing of safety eye covering during any and
all employee actions – even if the drill was not in contact with the item to be drilled on the drill
press at any time the drill and chuck are under power and spinning. I find that it was reasonable
for Respondent’s agents to interpret the rule in that manner and that it was also reasonable for
them to believe employees understood the rule in that way. The General Counsel’s offered
distinctions that eye protection is needful only when the drill is engaged by contact with the item
being drilled is not correct as a matter of logic or reason. A spinning drill and chuck are hazardous
and a potential risk to propel objects inadvertently put in contact with them into an operator’s eyes.
Further, the protocol requiring universal at all times when the drill press is under power, has the
benefit of simplicity which makes it easier for employees to comply with it consistently. To
determine if the Respondent’s agents acted benignly in taking the decisions they did I must
determine if Respondent’s agents involved in the matter interpreted the rule as requiring Aguirre
to were safety eye covering in the circumstances observed. I find that they did. I further find they
believed he had violated the rule as written and applied.
Having found the actions of Aguirre were in clear violation of the safety rule, I further find
that the issuance of a written warning by Ford was not disparate treatment supporting the General
Counsel’s argument. The violation occurred under Ford’s nose and he reacted immediately.
There was no dispute as to what had occurred, only the conclusions respecting whether the
conduct was proper, prohibited or inconsequential. I find that Ford did not find it to be either
proper or inconsequential and acted non-discriminately in reporting it to his superiors. Thereafter
the process, as occurred with Esparza and Stolyorova, noted supra, took the matter to higher
officials who, like Ford, I find viewed the rule rigorously and would be expected to take perceived
safety violations seriously. Given these findings I find the written warning was issued based on
Respondent’s believe the safety rule was broken and the warning was a proper response to such
a rule violations. I further find it was not issued for any other reasons.
Given these findings, it follows that the General Counsel has failed to prove that Aguirre
was issued a safety warning because of his union activities or because of his testimony in the
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earlier unfair labor practice hearing as alleged in paragraph 6 of the complaint. Therefore I shall
dismiss those complaint paragraphs that apply to Aguirre.
4. Summary and Conclusion
The complaint alleges two wrongful discharges and a wrongful written warning in violation
of Section 8(a)(1), (3) and (4) of the Act. I have found in each instance the General Counsel has
not sustained the allegation. I have further determined the relevant allegations of the complaint
be dismissed. It follows and I find that the complaint should therefore be dismissed in its entirety.
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent did not violate the Act as alleged in the complaint.
Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and
pursuant to Section 10(c) of the Act, I hereby issue the following recommended2
ORDER
The Complaint shall be, and it hereby is, dismissed in its entirety.
Dated, Washington, D.C. , May 31, 2007.
____________________
Jay R. Pollack
Administrative Law Judge

2 All motions inconsistent with this recommended order are hereby denied. In the event 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.