Case Farms of North Carolina, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 28, 2007

11-CA-021378 (N.L.R.B. Sep. 28, 2007)

JD(ATL)-30-07
Morganton, NC
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
CASE FARMS OF NORTH CAROLINA, INC.
and Case Nos. 11-CA-21378
11-CA-21379
WESTERN NORTH CAROLINA WORKERS' CENTER
Rossetta Lane, Esq. for the General Counsel.
Charles Roberts III, Esq. (Constangy, Brooks &
Smith, LLC) of Winston-Salem, NC, for the
Respondent.
Mr. Francisco Risso for the Charging Party.
DECISION
Statement of the Case
JOHN H. WEST, Administrative Law Judge. This case was tried in Morganton, North
Carolina, on July 16, 17, and 18, 2007. The charges in Case Nos. 11-CA-21378 and 11-CA-
21379 were filed by Western North Carolina Workers' Center on November 2, 2006.1 A
consolidated complaint was issued on March 30, 2007. It alleges that Case Farms of North
Carolina, Inc. (Respondent) violated Section 8(a)(1) of the National Labor Relations Act, as
amended (Act), by threatening employees with calling immigration and by terminating
employees Claudia Zamora and Luz Rodriguez because the employees engaged in concerted
activities for the purpose of collective bargaining or other mutual aid or protection, and in order
to discourage employees from engaging in such concerted activities for the purpose of collective
bargaining or other mutual aid or protection. Respondent denies violating the Act as alleged in
the above-described complaint.
On the entire record, including my observation of the demeanor of the witnesses,
and after considering the briefs filed by General Counsel and the Respondent on September 17,
20072, I make the following
Findings of Fact
I. Jurisdiction
The Respondent, a North Carolina corporation, processes poultry at its facility in
Morganton, where it annually sells and ships from its Morganton plant, products valued in
excess of $50,000 directly to points outside the State of North Carolina. The Respondent admits
and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6),

1 All dates are 2006 unless otherwise indicated.
2 Counsel for General Counsel's unopposed Motion for an extension of time to file briefs
from August 23 to September 17, 2007 was granted.
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and (7) of the Act.
II. Alleged Unfair Labor Practices
Facts
On October 27 a number of Respondent's employees engaged in a work stoppage.
Before October 27 the employees were provided with an unlimited number of latex gloves daily
by the Employer. The employees had been placing the gloves in trash containers when they
went on break or to the restroom, and they were given a new pair of gloves, at no charge to
them, when the returned to the work area. Before October 27 the employees had complained
that the quality of the gloves had fallen off. Also, customers complained that they were finding
pieces of the latex gloves in the product and they advised Respondent that they would not
continue to purchase Respondent's product unless the problem was remedied. Respondent
purchased better latex gloves which cost more and Respondent decided to only provide three
pairs of these gloves to the employees daily. If an employee required more than three pairs of
gloves on a given day, the employee had to pay 50 cents to Respondent for each additional pair
of gloves. The employees received notification of the change in policy on October 27.
Members of management spoke to the employees on October 27 telling them to go back
to work or leave the plant. The employees did neither. The message was repeated during the
morning and eventually the employees were advised that the police were going to be
summoned. Subsequently the police arrived and the employees were escorted off Respondent's
property.
Miguel Cua, who is a Human Resource supervisor, testified that on October 27 there
was a work stoppage beginning at 8:15 a.m., and he and Armando Campos, Respondent's
Human Resources Director, went down to the production floor to find out what was going on;
that the employees complained about the change in the glove policy; that the employees were
told that the new glove policy was not going to be changed; that management decided to give
the employees time to cool off; that later the employees were asked again to go back to work
but the employees said that they were not going back to work until the Company changed the
glove policy back to the old policy; that the employees were informed that the policy was not
going to be changed back and they had 10 minutes to go back to work; that a second warning
was given to the employees who were told to go back to work or leave; that the employees
refused; that after the third attempt to get the employees to work or leave, management told the
employees that if they did not work or leave they were trespassing and management would call
the police; that the police had the employees leave the Respondent's property; that by about
11:30 a.m. more than 250 employees had left the plant; that during the 3 hour period he did not
say anything about calling Immigration; and that he addressed the employees as a group.
On cross-examination Cua testified that during the work stoppage management told the
employees 'don't yell, don't yell, be calm' (transcript page 478); that there was no violence when
the police came; and that the employees left when they were told to by the police.
When called by Counsel for General Counsel, Victoria Soto King, Respondent's Human
Resource Director, testified that Respondent had been having a problem with the latex gloves it
used for some time; that eventually a vendor of a better quality latex glove was located; that the
better latex gloves cost the Respondent more and it was decided to give Respondent's
employees three pairs per day and after that the employees would have to pay for the additional
pairs of gloves they used; that she thought the cost to employees for additional gloves was 45
cents a pair; that employees have to purchase the files they use to sharpen their knives; that on
October 27 the employees engaged in a walk out because they were not going to get as many
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free gloves as they used to; that she arrived at the plant at about 11:30 a.m. on October 27; that
the police arrived at the plant and removed more than 250 employees on October 27; and that
later that day when the employees returned to the plant to pick up their paychecks she told the
employees that she did not understand why they had to walk out.
A newspaper article, General Counsel's Exhibit 2 (Respondent's Exhibit 13 is the
computerized copy of the newspaper article.) was published on Sunday October 29 about the
walkout and two employees who spoke to representatives of the press about the reasons for the
walkout, viz. Zamora and Rodriguez, were named in the published article. As here pertinent, the
newspaper article reads as follows:
More than 100 workers at Case Farms walked off the job Friday morning after
what they call a months-long attempt at correcting problems inside the factory.
Company officials say the incident Friday was caused by new gloves introduced
into the work area. ….
Workers say the gloves aren't their only problem.
….
'We've been talking for several months about problems at the plant, but the
company hasn't responded to our needs,' says spokesperson Luz Rodriguez, through
interpreter Francisco Russo, director of North Carolina Worker's Center.
Thursday, the company announced that each worker would get three pair of
gloves that should last them the entire day, she says.
The workers were told that they would be charged 75 cents for each additional
pair, she says.
She says workers normally use six or seven pairs a day because the gloves
break.
There was no limit on gloves before Friday, Rodriguez says.
….
Gloves aren't the only reason workers say they decided to stage a strike.
Pregnant women used to be able to take 13 weeks off when they had their
babies but the company now expects new mothers to come back in a month, Rodriguez
says.
'It had to do with a lot of things, ' she says. 'We decided to say, "No more." '
Claudia Patricia-Zamora says the workers at Case Farms are routinely told to
ignore notes from doctors about work restrictions when they've been injured on the job.
….
Rodriguez testified that she worked at Respondent from October 9, until October 31; that
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she cut and deboned chicken legs using a knife or scissors in area 1145; that on October 27
when she arrived at work at 8 a.m. she was given three pairs of gloves for the day and if she
needed more, she would have to pay for them; that in the past she was able to get as many
pairs of gloves as she needed during the day; that she then went to the ladies locker room
where the ladies were talking about a strike or work stoppage; that she and the other ladies
went to the work area; that all of the workers were standing; that she told the workers that if they
stick together maybe the company would reduce the price a little bit of the gloves; that
supervisor "Chepino" (Jose Hernandez) asked her why she was screaming at the people,
yelling at the people, and she told him that she was not yelling but rather she was simply
defending the employees' rights as workers; that the employees in area 1145 decided to go to
area 1110; that when she was in area 1110 Campos came and spoke to the employees; that
Campos asked her why she was yelling or screaming, she told Campos she was not screaming
or yelling she was just simply defending the employees' rights and defending her co-workers
because it was not just what the company was doing to them, it was not fair; that Campos then
told her that what she was doing was not right, if she had a problem, she should go to the office
and talk to him, and it was her fault that the people had stopped working in area 1110; that then
supervisor Miguel (Rodriguez did not know his last name) came and told the employees to leave
the company and the police were coming; that employees told Miguel that they were not afraid
of the police and Miguel said "Well, if you're not afraid of the police, then don’t make us call -
have to call Immigration" (transcript page 157); that then the police came and the employees
went to the cafeteria; that then the police made the employees leave Respondent's property;
that the employees went to a local church and she was chosen to speak to the press; that she
told the press that it was not fair what the Company was doing because the Company was
charging the employees for everything; that she returned to the plant later that day to pick up
her paycheck; that King told the employees "Aren't you - aren't you ashamed to come pick up
your check after you - after what you have done? Why did you make such a scandal for a pair of
gloves? Why did you force us to call the police?" (transcript pages 160 and 161); that an
employee said that they had only come for their paycheck and they did not want to hear what
King had to say; that King then said "well, be quiet, and if you don't want to work here, leave.
You are a dog, or it could be a bitch. I don't - it's the same word in Spanish" (transcript page
161); and that then King told the employees to be quiet and leave and "not to force her to call
the police or immigration because I will send you back to your country" (Id.).
On cross-examination Rodriguez testified that on October 27 at about 8 a.m. there were
about 300 employees who were not working at that time; that 3 hours later, or about 11 a.m.,
the employees were finally made to leave the plant; that only once did Campos and Cua ask the
employees to either leave the facility or go back to work; and that at some point Miguel or some
other supervisor told the employees that if they did not leave the plant the police were going to
be called.
King testified that about 90 percent of Respondent's employees at the involved plant are
Hispanic, with 89 percent of Guatemalan descent; that in 2006 the employees began
complaining about the latex gloves, indicating that they were thinner than they had been using
and that the finger tips were no longer rough which made it more difficult to hold the product;
that a customer complained that it was finding pieces of the yellow latex gloves on the product
and it indicated that if Respondent wanted the customer to buy the product, Respondent would
have to make sure that the extraneous material was not on the product; that it was decided to
use blue latex gloves; that the employees indicated that the new gloves were of the same
thickness of the gloves they used before they became thinner; that it was decided that three
pairs of the new gloves would be supplied to employees each day and if the employees needed
additional gloves they would have to pay 50 cents for each pair; that on Thursday October 26
she posted a notice to employees advising them that if they needed more than three pairs of
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gloves a day, it would cost them 50 cents a pair3; that when she arrived at the plant on October
27 at about 11 a.m. she saw the police cars around the plant and Campos told her what was
going on; that on the afternoon of October 27 when the employees returned to the plant to pick
up their paycheck, she asked them "why did you leave, why did you feel that you had to stop
like that" (transcript page 336); that some employees told her that they were not there to talk
about issues, they were there just to pick up their paycheck; that she then told the employees
present "[w]hen you come back on Monday, you're going to get your three pairs of better yellow
gloves you wanted. If you want to work, come to work. But if you don't want to work, don't even
bother coming" (transcript page 337); that she did not say to the employees don't make me call
Immigration or I'm going to call Immigration, and she did not call the employees dogs or bitches
in Spanish; and that she did not ask employees "are you ashamed to pick up your paychecks."
(transcript page 396)
On October 30 Respondent's employee known at that time as Zamora went to the
medical or first aid station in Respondent's plant, and presented a note, General Counsel's
Exhibit 3, from Table Rock Family Medicine which is dated "10-26-06" and which prescribed
"Light work or no work … [concerning left] arm for one week." Zamora is actually an alias for
Evodia Gonzalez Dimas. Dimas had worked for Respondent since 1999. However, the Social
Security Administration (SSA) advised Respondent by letter that the social security number that
Dimas was using was not a valid social security number for her. Subsequently, Dimas provided
Respondent with identification (a permanent resident card) as Zamora and a social security card
for Zamora, who had a different birth date than the one originally provided to Respondent by
Dimas. Respondent's Exhibit 6. On September 8 Respondent terminated Dimas, Respondent's
Exhibit 12, and on September 11 Dimas was hired and received orientation as a new employee
named Zamora, Respondent's Exhibits 16 and 14. When Dimas went to Respondent's medical
station on October 30 posing as Zamora, she was still a probationary employee since Zamora
had not completed her 90-day probationary period. On October 30 Dimas posing as Zamora
complained to the medical assistant in Respondent's plant about her left arm and shoulder. The
Respondent had not sent Dimas to the clinic from which she had the medical note. Zamora was
referred to Respondent's Human Resource department. Dimas posing as Zamora was advised
that since she was a probationary employee, Respondent would not accommodate her request.
Dimas posing as Zamora was terminated on October 30.
When called as a witness by General Counsel, King testified that Ken Wilson in public
relations at Respondent e-mailed her a copy of the newspaper article about the work stoppage
in which Dimas, referred to in the article as Zamora, and Rodriguez were quoted, Respondent'
Exhibit 13; that Raul Herrera, who began working for Respondent on October 9, 2006, is
Respondent's Safety Manager and is responsible for Respondent's medical station and
Workers' Compensation, met with her about Zamora's complaint regarding her left arm; that
Dimas a.k.a. Zamora had worked for Respondent since 1999; that on Friday September 9
Dimas brought to Respondent identification documentation as Zamora; that on the following
Monday Dimas began working as Zamora; that when Dimas was hired as Zamora, she was
given new employee orientation, a different employee number, a new employee seniority date,
her job and her supervisor remained the same but Dimas' pay was reduced to that of a starting

3 See page 8 of Respondent's Exhibit 5, which indicates, inter alia, that starting on October
27 every production employee will recrive 3 pair of gloves every morning at no cost to them -
blue for the leg debone personnel and the new better yellow gloves for the employees in the
rest of the departments, and that if the employees need more gloves other than the 3 free pairs
provided daily, they must buy them at their own expense which will be the price of .50 cents per
pair.
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employee; that when a new employee begins working at Respondent they often experience pain
in their arms and their wrists from the repetitive motion of the work; that Herrera will work with
the employees for a couple of weeks to alleviate the pain until they get better; that sometimes
Herrera has to move the employee to a different job where they are not using that particular part
of their body for a couple of weeks; and that Herrera does this for all employees, including new
employees.
When called as a witness by General Counsel, Herrera testified that when an employee
comes to the medical station complaining about an ache or pain the situation is evaluated; that
everything is treated as work related initially just in case; that new employees especially
experience aches and pains; that if a new employee complains about an ache or pain, they can,
after evaluation, be used in different areas of the plant within their department for a while so that
they are not aggravating the injury; that in October Zamora, who worked on the deboning line,
came to the medical station and told him that she was experiencing pain in her left shoulder,
arm and wrist; that on October 30 Zamora presented him with a note from the Table Ridge
Family Medicine clinic, which is one of the clinics which Respondent refers its employees to,
calling for light duty or no work for left arm for one week (General Counsel's Exhibit 3, a Table
Rock Family Medicine note, indicates "Light work or no work … [see left] arm for one week");
that in this instance Respondent had not referred Zamora to the clinic; that Zamora had been in
the plant aid office several times complaining about this pain in her shoulder, arm, and wrist,
and most of the time Respondent would give her some medication that would help relieve the
swelling and pain; that on October 30 when Zamora came to him with the medical note he told
her that he would help her and he gave her a sling for her arm; that at the time of her evaluation
he told supervisor Jose Hernandez to give Zamora a job where she did not have to use her left
arm; that 95 percent of the time he has employees who come to him with an injury or pain of
some sort write a statement about it; that he could only recall one other time when he had an
employee, Antonio Jackson, draft a statement regarding how he was injured; that he did not tell
Zamora individually when she came to the medical station that there are better ways to take
care of a problem than a work stoppage; that on October 27, as part of the management team
speaking to employees engaged in the work stoppage, he did tell all of the assembled
employees together that there is a better way to take care of problems than a work stoppage;
that his office did not schedule Zamora's appointment at the clinic; that at the time he did not
know Zamora under any other name; and that when he determined that the injury was not
related to Workers' Compensation he sent Zamora to Human Resources.
In her examination of Herrera, Counsel for General Counsel introduced General
Counsel's Exhibits 4 through 19, which show that Respondent gave light duty to a number of
employees who suffered an injury, pains, aches, or cysts. Some of these employees who were
given light duty had not yet completed their probationary (90days) period and some of these
were given light duty after Zamora was terminated. Indeed one of the probationary employees
who received light duty after Zamora was terminated had a non-work related injury.
Dimas testified that she began working at Respondent in January 1999; that in
September 2006 when she changed her identification from Dimas to Zamora she did not miss
any work in that she changed her identity on Friday and on Monday she was called Zamora;
that when she became Zamora her job and supervisor, Pedro Shank, did not change but she
was paid less for doing the same work; that she worked on a deboning line, cutting chicken legs
with a knife or scissors; that when she works with scissors if the chicken leg was not cut
properly by the person on the line ahead of her using the knife, she returns the chicken to the
person who originally had the responsibility of making the necessary cut with the knife; that she
uses her right hand for the knife and scissors and she wears a metal glove on her left hand; that
on October 26 she had to leave work early because her left arm hurt her a lot; that she went to
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see "Doctor Mike," who is a physicians assistant at Table Ridge Family Medicine clinic; that the
physicians assistant asked her if Respondent had sent her and she told him no; that prior to
seeing the physicians assistant she told the nurses aide in the plant that she was going to the
doctor because her arm hurt a lot; that the nurses aide told her that she would have to speak
with King and she did speak with King but she could not remember exactly when; that on
October 27 she participated in the work stoppage over Respondent's new policy regarding work
gloves; that she was also upset about Respondent's policies regarding absences and doctor
notes; that she overheard Rodriguez, who was a new employee, tell her co-workers not to be
afraid because management would not do anything to them; that supervisor Hernandez and
Campos then told Rodriguez to be quiet and they asked her why she was screaming so much ;
that the employees were told to go to the cafeteria, that the police would be summoned, and the
police did come to the plant; that many of Respondent's employees left Respondent's property
and met at a church; that newspaper people came to the church and she spoke with them
through an interpreter; that later in the day on October 27 she and other employees went back
to Respondent's plant to get their belongings and their paychecks; that while they were at
Respondent's plant, King told the employees that if they wanted to go back to work on Monday
the work was there but the new policy regarding the gloves would remain the same; that on
October 30 she told supervisor Hernandez that she had to go to the nurses station; that at the
nurses station she spoke with nurse Morgan and Herrera; that Herrera told her that he had
spoken with King, they decided to take her case, they were willing to help her, and he had a
present for her, namely a sling; that she gave Herrera the note she had from the Table Ridge
Family Medicine clinic; that she told Herrera that Dimas went to the clinic and not Zamora; that
Herrera then said that he did not like it when people played with him; that Herrera put her arm in
the sling, and he told her not to take it off for any reason and that the doctor's note would be
respected; that Herrera told Hernandez to put Zamora on a job where she would be using only
one hand; that she picked up chicken legs which had fallen between the lines and she placed
them in a box; that she worked for 2 hours and then went on a break; that she worked for 30
minutes more picking up chicken legs off the floor when Herrera told her to go to his office; that
Herrera told her that he was new at Respondent and needed her to help him so he could help
her; that he asked her to draft a statement indicating when she started work and when her arm
started hurting her; that while she was writing the statement, General Counsel's Exhibit 22,4
Herrera said that the employees committed a grave error when they stopped work on October
26; that she told Herrera that she realized that but she did not like the way King treated her; that
she spoke with Herrera for about 2 hours; that she told Herrera that ever since King and
Campos came to Respondent changes were made, they were not made in favor of the
employees but rather they were made in favor of the company; that she went back to work and
about 5:30 or 6 p.m. Hernandez told her to go to King's office; that it was just her and King in
the office but Campos came in at one point; that King told her that she had discussed the matter
with Herrera and she would have to let her go because she could not work with just one hand
and they did not have work for her with just one hand; that she told King that she was willing to
do any other work even if it did hurt her; that King told her that she could not do anything for her;
that she asked for a termination slip and King said she was not going to give it to her; that King
called and told Herrera to accompany Dimas to get her belongings; that during her employment
with Respondent she once took a leave of absence for 4 months; and that when King
discharged her King did not tell her that she could reapply to work at Respondent's plant in 30
days.
On cross-examination Dimas testified that the birth date of Zamora was different than

4 In here statement, Dimas indicated that the metal glove she wore on her left hand for the
half day that she used the knife weighed a lot when it was full of grease or fat.
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the one she originally gave when she originally went to work for Respondent in 1999,
Respondent's Exhibit 15; that the Social Security number she gave to the Respondent in 1999
was given to her by a friend; that she was not authorized to work in the United States in 1999;
that she was never terminated by the Respondent before October 2006; that in September 2006
King told her that she would have to be terminated as Dimas and rehired as new employee
Zamora; that she signed an employment application as Zamora; that her pay was reduced; that
she bought the papers so that she could work as Zamora; that on October 27 Hernandez told
employees to go back to work about three times; and that on October 30, even though she was
not asking for a leave of absence, King told her that she could not give her a leave of absence
because she was a new employee.
On redirect Dimas testified that she gave her Zamora papers to Campos and not King;
that while she signed the Zamora application, General Counsel's Exhibit 23, she did not fill it
out; that King filled out the Zamora application and King asked her to sign it; that while she
worked as Dimas at Respondent, her job was changed for one week to accommodate a thumb
she cut at home; and that she regretted changing her name to Zamora "because it didn't do me
any good." Transcript page 148.
King testified that the probationary period is 90 days; that probationary employees do not
receive any benefits and they are not eligible for any kind of medical or personal leave; that
since 2004 when someone applies for a job Respondent has telephoned the SSA to check that
there is a match with the social security number given, the name, and the birth date; that
periodically Respondent gets letters from SSA indicating that there are certain mismatches; that
she prints two copies of the letter, gives one to the employee involved, and has the employee
sign the other copy to show that the employee was given the letter; that the SSA letter indicates
that the employer cannot assume that the individual in question is illegal and the employer
cannot take adverse action against the involved employee; that she gave such a letter to Dimas
and Dimas subsequently gave new documentation to Campos6; that she did check the Social
Security number to make sure that it belong to somebody named Zamora; that Dimas was
terminated on September 8, 2006, Respondent's Exhibit 12; that Dimas, under the name
Zamora, was hired on September 11, 2006, Respondent's Exhibits 14, 15, and 16; that late in

5 Respondent's Exhibit 1 includes copies of the Resident Alien card, the Social Security
card, and the State of North Carolina DMV Identification card Dimas gave to the Respondent in
1999 when she was first hired.
6 Dimas gave Campos a permanent resident card and a social security card, Respondent's
Exhibit 6. The permanent resident card has the picture of Dimas on it but it has the name of
Claudia Patricia Zamora with a birth date of 12/06/81. The card also indicates that the holder
has been a resident since 04/20/01. The social security card bears the name of Claudia Patricia
Zamora. The documentation that Dimas originally gave to the Respondent, Respondent's
Exhibit 1, includes a resident alien card, and a State of North Carolina identification card. Both
the Dimas resident alien card and the State of North Carolina identification card give Dimas's
birth date as 11/01/79. The numbers on the two social security cards Dimas gave to
Respondent at different times are not the same. In other words, with the documentation Dimas
gave to the Respondent in September 2006, as far as Respondent was concerned, she
changed her name, birth date, and social security number. The numbers of the new social
security card bear no resemblance whatsoever to the old social number. Indeed, the old one
began with the number 5 while the new one began with the number 6. King testified that she did
not ask Dimas about these changes and Campos did not testify at the trial herein. With the
changes, Dimas incredibly reversed the aging process by over two years. Yet no one at
Respondent saw fit to ask her how she accomplished this feat?
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the afternoon of October 30, 2006 Herrera told her "[t]hat Evodia had a personal doctor's note
that I needed to deal with" (transcript page 352); that for anything work related the nurses
station would schedule a doctor's appointment; that she has advised supervisors that any other
doctor's note should be referred to Human Resources; that the Respondent does "not
contemplate personal doctor's note restrictions [regarding light duty or proposed restricted duty]
at all, none" (transcript page 353); that Respondent allows light duty or restricted duty in work
related, workers compensation cases; that if employees who are not probationary come to her
with a note proposing a personal restriction that employee can take medical leave or personal
leave; that it is best that employees who have not finished their probationary period and who
have a proposed personal restriction, that they just quit and come back when they are better;
that anyone can reapply after 30 days; that she understood that Zamora's appointment was not
one that either Herrera or his office scheduled; that she called Zamora to her office and told her
that Respondent did not have a job for her because she had a restriction in her personal
doctor's note; that Campos and Herrera were in her office at the time; that she told Zamora that
if she had been there more than 90 days she would have options but Respondent could not
accommodate her restrictions, and, therefore, Respondent did not have a job for her; that on
Monday morning, October 30, she did see Zamora's name in the newspaper article emailed to
her by Wilson, Respondent's Exhibit 13, but that had nothing to do with Zamora's termination;
that she probably printed a copy of the email but she did not have a copy of the actual
newspaper itself; and that she has had other employees since she has been at Respondent
within their probationary period who had personal restrictions that she has been unable to
accommodate. King sponsored Respondent's Exhibits 28 [A probationary employee, Carlos
Algarin, could not work until his next medical evaluation and he was not eligible for leave of
absence (LOA).], 29 (A probationary employee, Marie Vincente, could not work in a cold
environment and she was not eligible for LOA), and 30 (A probationary employee, Ronald
Romero, could not work until his next medical evaluation and he was not eligible for LOA).
On cross-examination King testified that she was employed with Respondent when
Algarin requested a leave of absence; that Algarin was requesting to be out of work completely,
the doctor told Algarin that he could not work until his next medical evaluation, and she did not
know how long it would be until Algarin's next medical evaluation; and that Romero was asking
to be out of work until his further medical evaluation and he was not asking for any type of
special accommodations; that Vincente was requesting a restriction not to work in a cold area
and the doctor did not give a particular time frame that she was not supposed to work in a cold
environment; that as memorialized by General Counsel's Exhibit 25, Dimas a/k/a Zamora
received a probationary increase in pay back up to eight dollars an hour after she had been
working at Respondent for less than a month as Zamora; that Dimas a/k/a Zamora never
requested a leave of absence; that she did not review Dimas' personnel file before testifying at
the trial herein; that there are documents in Dimas' personnel file which indicate that she
received leave of absences throughout her employment; that Dimas is not an argumentative
employee and she did anything she, King, asked her to do; and that when Dimas a/k/a Zamora
brought the medical note on October 30 she would have been eligible for a leave of absence if
she had not been a probationary employee.
When called by the Respondent Herrera testified that he was called to the nurses station
about 8:15 a.m. on October 30; that at the time Morgan was in charge of the nurses station; that
Morgan told him that Respondent was treating Zamora for what is called evaluation; that he
knew about it the week before; that he asked Zamora what was wrong; that he told Zamora that
he had something to help her out and he gave her a sling to immobilize her arm; that he told
Zamora that she was going to have to wear the sling throughout the day; that he called
Hernandez and told him that he needed to find a job where Zamora could use one arm; that
after he gave Zamora the sling and told her that she would be working under restrictions, she
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told him that here arm had been hurting for some time and she gave him a medical note; that
neither he nor the nurse scheduled that medical appointment; that for workers' compensation
injuries either he or the nurse schedules the doctor's appointment; that he checked how long
Zamora had worked for Respondent and discovered that she had not been there very long; that
he had Zamora come to his office and he asked her to draft a statement regarding what caused
the injury, how, when, and why it happened; that Zamora gave him her statement (General
Counsel's Exhibit 22 translated at transcript pages 123-124); that he sent Zamora back to work
and he then reviewed her statement; that the statement showed differences in time, it showed
differences in when her injury happened, when she reported it, and how long she had been
injured (The statement reads in part as follows: "The pain began when I was about eight (8)
months doing the second cut. …. I started working on the 6th of February 2003. …."); that when
he looked at Zamora's hire date again he realized that there was an issue and he brought the
note back to Human Resources so they could evaluate it; that in his conversations with Zamora
that day he did not say (1) anything about the walk out that had occurred on the previous
Friday, (2) employees had made a grave error, (3) we've taken your case per Victoria, and (4) I
have a gift for you; that Zamora did not say it is not Christmas; that he was present when
Zamora was terminated; that King told Zamora that she was not eligible for LOA and the
Respondent did not accommodate any personal restrictions; that he walked Zamora out of the
plant; that as he escorted her out, she threw the sling in his face, said that he cheated her out of
her job, and called him "bentetol" which means stupid or something like that; that regarding
some injuries he did not know whether they were work-related or nonwork-related and he works
with the employee until it is determined whether the injury is work-related or not; that with
respect to General Counsel's Exhibit 4, (a) Donald Gene Allen had non-work related injury and
he received 5 days on job restriction, (b) Antonio Rico Jackson had a non-work related injury
and was given 8 days job restriction, (c) Dorothy Gladden had a non-work related injury and had
other recordable cases, and (d) Janice Elaine Jordan had a non-work related injury and was
given 8 days on job restriction; that Allen, Jackson, Gladden, and Jordan were all provided
restricted duty while he was setting up appointments for Respondent to determine whether their
injuries were work-related or not; that Zamora was different because she gave him a personal
note and
Because the red flag again. If we - If I - if I don't have any red flags on a - on an injury,
once again we treat all injuries as they were work-related and then we go from there.
With Claudia Zamora, there was a red flag. There was a date of hire, then an injury date,
and that's what caused for me to investigate. [Transcript page 504]
On cross-examination Herrera testified that Morgan is not a registered or licensed
practical nurse but rather she is a CNA (apparently meaning a certified nursing assistant); that
Zamora came to the nurse's station with a pain in her left shoulder, arm, wrist, and hand; that
after she gave him a written statement he escorted Zamora to King's office; that he told King
what was going on; that King did not tell him at that time that Zamora had worked since 1999 at
the plant as Dimas; that he was on the plant floor on October 27 during the work stoppage; that
he was part of the group of managers who were trying to calm things down; that he and the
other managers were telling employees "don't yell, don't yell, calm down" (transcript page 510);
that after several attempts to get the employees to go back to work, the employees were told
that the authorities were going to be called; and that he never sent Zamora to the doctor to be
evaluated for her arm because she never gave him the opportunity to because Zamora went to
the doctor first.
Respondent experienced mechanical problems on line 16 in the deboning department
on October 31, 2006. The employees on that line, who were not experienced employees, were
moved to line 12 in the deboning department. Among them were Rodriguez, who had been
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hired by Respondent just a couple of weeks before that, and employee Dominique Johnson,
who had been hired in March 2006. As here pertinent, Rodriguez and Johnson were positioned
on the line so that Johnson first made a cut with a knife and then Rodriguez, using only
scissors, engaged in a follow up procedure. Johnson was not making the cut properly which
meant that Rodriguez could not further process the product moving to her from Johnson.
Indeed, Johnson's failure to do her job properly affected not only Rodriguez ability to perform
her job but it affected at least one other employee beyond Rodriguez on the line, namely Pedro
Luis Ronda, who also worked with scissors. Rodriguez returned the product to Johnson to
rework it. Rodriguez did this on more than one occasion. Johnson and Rodriguez then
exchanged words and Johnson, without permission from a supervisor, walked away from the
line. Human Resources then became involved in this matter. Johnson, Rodriguez, and Rhonda
were interviewed, and they gave written statements to Human Resources. Respondent's
Exhibits 20, 24 and 22, respectively. Supervisor Daniel Raymundo also gave a written
statement to Human Resources with respect to what he allegedly witnessed. Respondent's
Exhibit 21. Rodriguez, who testified that she cannot read in English, signed a statement written
in English by King. General Counsel's Exhibit 25. The statement indicates that Rodriguez threw
product. Rodriguez was terminated. Respondent takes the position that Rodriguez was
terminated for throwing product when she gave Johnson back the product to rework or cut
properly. According to Respondent, throwing product warrants termination.
Johnson did not testify at the trial herein.
When called by Counsel for General Counsel, King testified that Johnson was
discharged in 2007 for absences; that Johnson was a tall and heavy set woman; that Johnson
was not a Hispanic employee and she did not speak Spanish; that Johnson had to be coached
a lot because the other employees thought she was rude; that Johnson did not get along with
the other employees; that Johnson came across as a bully, she intimidated other workers, and
was disrespectful toward supervisors; that Johnson was often late for work and sometimes she
forgot to clock in; that Johnson refused to do what a United States Department of Agriculture
inspector directed her to do; that on October 31 Johnson came to her office; that prior to
Johnson coming to her office neither supervisor Raymundo nor supervisor Hernandez told her
that there was a problem on the involved line; that Johnson told her that Rodriguez, who was
making a cut following the cut Johnson was making, told Johnson that she did not know how to
cut the chicken right; that Johnson gave a statement to her and in it Johnson indicated that she
told Rodriguez that nobody was going to tell her that she could not cut the chicken right; that
Johnson told her that the other employee had cussed at her in English; that Johnson, who was
using a knife at the time, told her that she told Rodriguez "to come and fuck her up," transcript
page 46; that when Johnson left the line she did not tell her supervisor that she was leaving;
that employees do not need to get permission to leave a line to see her if they feel threatened or
intimidated even if a supervisor is present on the line; that Rodriguez was a new employee and
she was learning the job a the time of her discharge; that she did not recall any employee being
issued a warning for walking off the line without permission during the time she worked at the
involved plant; and that an employee can be disciplined for using profane language in the plant.
Rodriguez testified that when she came to work on Tuesday October 31 her line was not
running and her supervisor told her that she was being sent to another line; that the supervisor
on the line she was sent to was Raymundo; that her task was to remove the fat from the chicken
with scissors and remove the bone; that to her right there was a lady who was new to the job
and she could not do the work; that Johnson was to the right of the new employee; that the new
employee next to her was moved by Raymundo because she could not do the work; that she
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took the new employee's place next to Johnson and there was a boy on her other side7; that
Johnson, who is a tall women and was using a knife, was not doing her job correctly; that
supervisor Raymundo was temporarily taking an employee's place on the line; that she told
Raymundo to tell Johnson to do her job right because she could not work if Johnson was not
doing her job right; that Raymundo did not pay any attention to her the first time; that she told
Raymundo the second time to tell Johnson to do her work correctly because she could not do
her job if Johnson did not do her work correctly; that then she saw Raymundo speaking to
Johnson but she could not hear what was said since she was wearing earplugs; that she
pushed the chicken which was piling up in front of her back to Johnson; that then Johnson threw
a piece of chicken at her which hit her stomach; that Johnson looked at her with an ugly face,
said some ugly things, and wanted to hit her with the knife she was holding; that Johnson raised
the knife; that she ran behind the boy next to her; that Raymundo called someone on the radio
and then told Johnson to go with him; that about 5 minutes later Hernandez told her to leave the
line and stay in a room with a supervisor; that she told the supervisor what had happened and
she was sent back to work; that later she was called to go off the line and she went to an office
with Cua; that she was then sent to take her break; that she then went to King's office; that King
told her "you are new and you already have problems with the employers - employees,"
transcript page 171; that she explained to King what had happened and King gave her a yellow
sheet of paper to write out a statement; that she wrote out what happened and she signed it,
General Counsel's Exhibit 248; that King then told her that everything that she "wrote on that
paper was pure lie" transcript page 173; that she told King that everything that she wrote was
the truth, that she did not like to use lies, and she only liked to work with the truth; that King
continued to say that everything that she had written was a lie and she should tell the truth; that
King then told her that she was suspended and the company was going to look for witnesses;
that she told King that she should go get witnesses; that King told her that she had talked badly
- used bad language to the black lady and that she had thrown chicken at the black lady; that
she told King that she should review the video tape; that she then went to the office with Miguel
for 20 minutes; that then she returned to King's office; that Campos and Miguel were present, in
addition to King; that King told her "to sign a paper [General Counsel's Exhibit 25] that said that I
had abused a Company objects [sic] and that I threw chicken," transcript page 175); that while
she cannot read English, she signed the document which was written in English9; that King
made her sign the document; that King then told her that she was suspended for a few days
because she had thrown Company objects and the Company wanted to find out what
happened; that initially she refused to give King the Company ID; that King said "give me the ID
so I don't have to be forced to call the police. She told me to give her the ID, I told her no, and

7 At one point Rodriguez testified that the boy was on her right hand side and Johnson was
on her left hand side (transcript page 164).
8 The English translation reads as follows:
10-31-06
Today Tuesday
Something happens in the line that had a problem with the black lady. It started when
she was in the third cut, she was not doing the chicken properly. For that reason I told
her to make the chicken right but she started to yell at me in the line and raised a knife at
me and she wanted to hit me and started strongly insulting me.
Only that happened today.
Luz Cordona Rodriguez
When I told her to calm down she screamed and threw the chicken at me. (stomach)
9 In the "NATURE OF THE INCIDENT" portion of the form the following appears: "Throwing
product and cursing at another employee. Luz is being suspended pending investigation. She
will return on Friday 9am (11-3-06) for job review."
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she said don't make me have to call the Immigration and I can send you - so I'll send you to
your country," transcript page 177; that she then gave King the Company ID; that she saw a
newspaper on King's desk which was about the work stoppage because the picture in the
paper was of a man showing the glove; that she returned to King's office on November 3; that,
in addition to King, Campos and Miguel were present; that King told her that there was no work
for her; that she asked King if they were getting rid of her because of the work stoppage; that
King told her that she "didn't have the right to ask that question because I was only a worker
there," transcript page 179; that she repeated the question and King gave the same response;
and that she did not throw chicken at the black lady.
On cross-examination Rodriguez testified that during orientation one of the policies that
was reviewed was that throwing product was strictly prohibited; that she understood that any
employee who threw product would be terminated; that she did not know that there was a
mechanical problem on her original line on October 31; that she was having a problem with the
work of the black lady and the lady next to her; that while she complained to Raymundo about
the black lady she did not complain about the other lady who was new and not doing her job
correctly; that the other lady who was new was, like herself, Hispanic; that the new lady next to
her was using scissors and doing the same job she was doing; that since the new lady next to
her was not doing her work correctly, it meant that both legs were coming to her, Rodriguez, to
further process; that Raymundo was across from her and the black lady was to her right; that
the Hispanic lady who was new and not doing her job correctly was between her and the black
lady up until the time that Raymundo removed her; that she spoke to Raymundo across the line
about the black lady not doing her job correctly; that when she was in King's office King called
Miguel by radio and Miguel came to King's office; that by the time Miguel came to King's office
King had already told her that she was being suspended; that she did not want to give back her
ID because she did not do anything wrong, she did not throw any chicken; that she did not tell
King and Miguel that she had thrown any product; that she picked up the chicken because it
was piled up, and she handed the chicken to the black lady; that she took five pieces of chicken
and put it where the black lady was working; that she did not pick up the chicken but rather she
pushed it to the black lady who was working next to her; and that at no time did she actually lift
the chicken off the table.
Subsequently Rodriguez testified that she saw the plant floor on the video monitor in
King's office; that she saw a newspaper in King's office regarding the work stoppage and not an
8 and 1/2 X 11 printed e-mail sheet of paper; that King did translate into Spanish what she had
written in English on General Counsel's Exhibit 25; that King did not translate into Spanish the
handwriting at the top of General Counsel's Exhibit 25, namely "throwing product and cursing at
another employee"; that King simply told her to sign the paper acknowledging that she had
thrown product; that before she signed General Counsel's Exhibit 25 King told her that the
document indicated that she had thrown product; that King told her that she had abused the
Company; and that King did not tell her that she had thrown product, King told her that she had
abused the Company, or taken advantage of the Company.
On recross Rodriguez testified that King told her that General Counsel's Exhibit 25 said
that she had thrown an object of the Company; that King did not explain what General
Counsel's Exhibit 25 said but rather King simply told her that she had abused the Company; that
King told her that she had thrown an object of the Company, had abused Company property,
and had used bad language; that King told her to recognize that she had abused the Company
and to sign the document, General Counsel's Exhibit 25; and that she understood when she
was signing the document that she was being suspended for 3 days and being asked to come
back on November 3.
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On redirect Rodriguez, who is about 5 feet tall, testified that she always did what King
told her to do.
Raymundo testified that he supervises lines 11, 12, 13, and 14 in the Leg Debone
department, which is department number 1145; that on Tuesday he saw a discussion, an
argument between Rodriguez and Johnson; that at the time he was working on line 11 taking
the place of a worker who went to the rest room; that neither Rodriguez nor Johnson, both of
whom work on line 16, normally work for him; that there was a mechanical problem that day with
line 16 so Rodriguez and Johnson were moved to line 12; that the employees working on line 12
face the employees who work on line 11, and the line runs between these two tables; that
Johnson was working with a knife and Rodriguez was working with scissors; that there was one
employee between Johnson and Rodriguez and while he could recall that the person was a new
employee, he could not recall the employee's name; that he did not remove the employee who
was working between Rodriguez and Johnson from the line that day; that neither before nor
during her argument with Johnson, did Rodriguez say anything to him about the performance of
either Johnson or the new lady who was working between her and Johnson; that he noticed that
Johnson was passing the legs with a bad cut; that he saw Rodriguez take down the leg with the
bad cut from the hook and "throws it to Dominique" (transcript page 208); that "the line comes
from there, there was a person in the middle, then she takes it - the person in the middle takes it
and throws it" (id); that Luz threw it with a side arm motion approximately three (3) yards; that
while he demonstrated with a pen, standing up, that the object was held in his right hand and
was thrown in a side arm motion across his chest to his left, Johnson was actually to the right of
Rodriguez, and, therefore the product would have had to be thrown in the opposite direction
than he demonstrated; that Rodriguez would have had to return the product to her right to
Johnson; that when Rodriguez threw the leg in front of Johnson she started to argue; that
Johnson told Rodriguez "come on, push me" (transcript page 212); that Rodriguez said
something in English to Johnson; that he saw Rodriguez throwing the chicken leg two times;
that the argument or discussion between Johnson and Rodriguez occurred when Rodriguez
threw the leg the second time; that he did not see Johnson throwing any product that time of
day; that Johnson left the line after the argument; that he called Hernandez who went to look for
Johnson; that Hernandez called him and told him to take Rodriguez to Human Resources; that 5
or 10 minutes later he was asked to come to Human Resources and King asked him to write
what he had seen10; that he did not verbalize to King what he had seen; that King then asked

10 The statement, which is in Spanish, was received as Respondent' Exhibit 21. As
translated it reads as follows:
I was in Line 11 helping the person that asked me a favor to help because of the
need of having to go to the bathroom. The people that are on Line 12, Artora moved
them from Line 16 to Line 12. I only saw - I only saw that Ms. Dominique stopped
passing the legs - stopped passing the legs badly cut and stopped passing - and
stopped passing the leg without a cut and the other lady took or lowered the leg from the
hook and threw it on the table of the line where the lady Dominique does the third cut.
Dominique raised her voice and the other answered the same in a raised voice, and
Dominique got angry - got angrier, raising her hands saying hit me or push me with a
knife in the - in the hand. I didn't see if Dominique threw something of chicken - some
part of the chicken to the woman because I was working. Daniel Raymundo. [Transcript
pages 221 and 222]
After the statement was translated, it was submitted that instead of "stopped passing the
leg" what was written meant "allowed to pass the legs that were badly cut and allowed to pass
one leg that was not cut." (transcript page 222). The interpreter testified that she translated as
she saw it written.
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him to go back to the line and ask the employees if they saw what happened; that he spoke to
five employees and only one, Ronda, said that he saw what happened; that he talked to Ronda
in Human Resources with King present; that Ronda gave King a written statement and he told
King what he saw; that Ronda told King that Johnson was doing a poor job and that Rodriguez
"threw the legs back" (transcript page 216); that Ronda did not say whether he saw Johnson
throw anything; that there are video cameras that point toward the lines 11 and 12, but the
cameras are far from those lines in that they are in front of line 1 and beyond; that there are
monitors in King's office that show "I think from Line 1 to Line 8" (transcript page 217); and that
line 1 is closer to the camera than lines 11 and 12 are.
On cross-examination Raymundo testified that Johnson is a big women, very tall and
very heavy; that when an employee leaves the line they are supposed to get someone to relieve
them; that the employee has to have permission to leave the line or they can get a warning; that
Ronda was next to Rodriguez on the line; that he did not know the name of the women who was
working between Johnson and Rodriguez, she still worked for the Respondent, but she told him
that she did not see what happened; that he saw the legs that Rodriguez was taking down from
the hook and they were not cut the way they were supposed to be cut by Johnson; that "after
Johnson sent a leg through that wasn't properly cut, Rodriguez picked it up and put it back in
front of Ms. Johnson to do the right cut" (transcript page 228); that Rodriguez was trying to do
her job and if Johnson was not doing her cut correctly, Rodriguez could not do the correct cut;
that Rodriguez, who was using scissors, could not correct the mistakes Johnson, who was using
a knife; that Rodriguez should have taken the product down and shown him the bad work that
Johnson was doing; that he was not watching Johnson and Rodriguez, "I wasn't really looking
because I was working for someone" (transcript page 229); that Joint Exhibit 1 is his diagram of
Lines 11 and 12 and who was working where on the day in question; that hooks and a conveyor
belt for the finished product move between Lines 11 and 12; that the employees are about 2 feet
from each other on lines 11 and 12; that he was approximately 3 feet from Johnson and at that
distance he could tell that Johnson's cut was improper "[b]ut I was working, so I couldn't see
specifically the cut that Ms. Johnson was doing" (transcript page 238); that when Johnson
raised her voice he called over to Johnson to calm down but in that moment she left the line;
that he did not go to where Johnson and Rodriguez were on line 12 because he was working as
relief on line 11; that in the affidavit he gave to the National Labor Relations Board (Board) he
did not indicate that he called Hernandez but he did call Hernandez; that when Johnson got
angry she turned to face Rodriguez holding the knife up pointing toward the ceiling and she told
Rodriguez to come hit her; that when the employee who he was relieving came back to the line
he took the employees from line 12 to work somewhere else; that Johnson did not ask
permission to leave the line; that all the other employees on line 11 stopped working; that he did
not give Johnson a warning for walking off the line or for not making good cuts; that King did not
ask him if he saw Johnson throw product; that he told King that Rodriguez gave the chicken
back to Johnson to make the right cut; that Johnson returned to the line about 30 or 40 minutes
after her confrontation with Rodriguez; that Rodriguez never returned to the line; that he heard
King ask Ronda if he saw Rodriguez throw product; and that King did not ask Ronda if he saw
Johnson throw product.
On redirect Raymundo testified that in his affidavit to the Board he did indicate that
Hernandez came over to the line and talked to him after about 2 minutes; that when he testified
on cross-examination that Rodriguez "put" or "laid" the product back in front of Johnson he
meant "[s]he threw it" (transcript page 251) in the manner he demonstrated earlier; that other
employees have been terminated for throwing product; and that he did not know of anyone who
has thrown product who did not get terminated.
On recross Raymundo testified that with respect to the employees who were terminated
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for throwing product, two of them were playing and a chicken landed on another employee; that
the employees were throwing chicken at each other and the chicken hit the floor; that when the
employees who are using the scissors on line 12 are finished their cut they place the product on
the conveyor belt; and that Rodriguez did not place the product back in front of Johnson but
rather Rodriguez threw it in front of Johnson.
Subsequently Raymundo testified that an employee using scissors is expected to
process about six chickens a minute and while he was performing this function on line 11 he
was not attempting to engage in any supervisory functions; that notwithstanding that his
attention was focused on the continuously moving line he was working on, he noticed that there
was a problem on the next line "[b]ecause you could see and hear that they were raising their
voices" (transcript page 256); that he heard raised voices the second time; that he was aware of
the first time because "I noticed when Ms. Luz [Rodriguez] threw the chicken in front of
Dominique [Johnson]" (id.); that while he was working on line 11 as relief he was performing a
dual function in that he was acting both as an employee processing chickens and at the same
time he still wore the supervisory hat in that he was watching other employees; that before the
incident Rodriguez did not speak or attempt to speak to him about what was going on as far as
the performance of Johnson was concerned; that he wore earplugs on October 31, 2006 when
he was working on line 11; that the fact that he was wearing ear plugs and the fact that there is
"noise everywhere" (transcript page 257) makes it difficult to hear what is being said at the next
table over; that he did not see Rodriguez go behind Ronda during the incident with Johnson;
and that Rodriguez turned to face Johnson, and Rodriguez backed up but she did not go behind
Ronda.
On further redirect Raymundo testified that he is not able to do more than six chickens a
minute with scissors; and that he was about 6 feet from Johnson when the incident occurred.
Ronda testified that he recalled the incident between Johnson and Rodriguez; that he
was working on line 12 that day next to Rodriguez, trimming legs; that Johnson was next to
Rodriguez11; that Johnson was passing legs badly cut; that Rodriguez threw the leg on top of
the table; that Johnson stopped and got angry; that Johnson said something in English, which
he did not understand and Rodriguez responded with two words in English which he did not
understand; that he then told Raymundo what was going on and about 10 minutes later
Raymundo came and got both Johnson and Rodriguez; that about 20 minutes later Raymundo
asked him if he saw what happened and he told Raymundo that he did see what happened; that
Raymundo asked him to go upstairs to King's office to tell her what happened; that he told King
that the black lady had passed the legs poorly cut; and that he also told King:
[Johnson] passed the first leg and then she passed the second leg, and that's where Luz
took the leg and threw it on top of the table. And then the lady - the black lady stopped,
turned to look at Luz, and Luz looked back at her. They both looked at each other. And
the black woman started to speak, say things in English, and Luz responded some
things also. [Transcript page 267]
Ronda further testified that during the incident in question Johnson had a chicken leg in her
hand and she threw it on top on the table because she was angry; that the black lady placed the
knife, which she had in her hand, on top of the table; and that he told King what happened, King

11 At this point counsel for the Respondent asked "[d]o you recall if there was another lady in
between Luz and Dominique" to which Ronda replied "[y]es, there were. But I don't remember
who they were." (transcript page 265)
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wrote out a statement, he reviewed it, and then he signed the statement, Respondent's Exhibit
22; and that the statement is accurate.
On cross-examination Ronda testified that when chicken that was badly cut came to
Rodriguez she threw it normally but she threw it; that Rodriguez did not throw it strongly, "[s]he
threw it normally, like slowly" (transcript page 277); that when the other leg came Rodriguez
threw it softly on the table in front of Johnson; that after he is finished trimming the leg he throws
it on the conveyor belt; that when the leg is poorly cut, he takes the leg and gives it to the
person who was supposed to cut so that they can cut correctly; that he places the leg on the
table in front of the person who was supposed to make the proper cut with the knife; that when
Johnson became angry she put her knife on the table and she turned to face Rodriguez; that 20
minutes later both Johnson and Rodriguez left the line; and that when he spoke with King she
asked him if he saw Johnson throw chicken.
Subsequently Ronda testified that after Johnson and Rodriguez had the verbal
exchange he called Raymundo and told Raymundo what was going on, and "when …
[Raymundo] saw it they [Johnson and Rodriguez] were arguing" (transcript page 283); that he
whistled at Raymundo who was on the other line ["either Line 11 or Line 10" (id.)] and he called
Raymundo; that at the time Raymundo was talking and teaching the work to other workers; that
when he called Raymundo he saw what was happening and Raymundo came immediately to
line 12; that he told Raymundo that the black lady was not working well; that when he told
Raymundo this Johnson and Rodriguez had already argued; that the black lady was still on the
line when he spoke with Raymundo; that Raymundo said that he would take care of it and then
Raymundo spoke with the black lady; that he could not hear what Raymundo said to Johnson;
that he could not remember if the black lady continued to work on the line or if Raymundo took
them off the line; that he thought that Rodriguez tried to get Raymundo's attention with respect
to Johnson not doing her job properly; that on October 31, 2006 he had two conversations with
Raymundo, namely when he told Raymundo Johnson was not doing her job properly and when
Raymundo asked him if he saw what happened; that there are no vertical partitions dividing the
table that he and the other employees were working at on line 12; that the long table is a flat
surface where eight employees work; that there is nothing between one employee and another
employee working at the table on line 12; that he told King that he saw the black lady throw
chicken on top of the table; that King only asked him if Johnson had thrown a leg or a piece of
meat; and that during the exchange Rodriguez did not attempt to get behind him so that he
would be between her and Johnson.
On recross Ronda testified "I told her [King] that Luz first threw a chicken leg and then
the black lady threw also a chicken leg." (transcript page 292)
King testified that she tells employees that if they feel intimidated in any way, if they
have a problem of any kind, they should come and see her and they will not get in any trouble;
that it does not matter if they are on the line when they want to come to see her; that this has
happened before and after October 31, 2006; that Respondent's Exhibit 2 is the employee
handbook; that Good Manufacturing Practices are rules which are United States Department of
Agriculture regulated and which were developed basically for food safety; that Respondent's
Exhibit 3 is a Power Point presentation Respondent shows to all of its employees; that page 12
of Respondent's Exhibit 3 indicates that "[t]hrowing product or any other item is PROHIBITED" ,
and that "[a]ny person that violates this rule will be terminated immediately"12; that

12 This entry includes a picture of a chicken wing on the floor and a drawing of person
throwing a pencil, both of which have an X over them.
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Respondent's Exhibit 4 is the Power Point orientation presentation; that during her orientation
Rodriguez signed on October 13, 2006 a Spanish rendition of "Good Manufacturing Practices &
Operation Sanitation Procedures" which includes, inter alia, "23. Throwing product or any other
item is PROHIBITED. Any person who violates this rule will be terminated immediately,"
Respondent's Exhibit 19; that on the morning of October 31 she became aware of a problem
between Rodriguez and Johnson when Johnson, a large black lady who had had problems with
Hispanic employees in the past, came to her office and told King her version of what happened
between her and Rodriguez; that Johnson's "version of the story was apparently Luz
[Rodriguez] wasn't happy with her cuts, and she started throwing the meat back at her…. and
by the second time when she threw meat back at her … they engaged in … [a] verbal
confrontation" (transcript page 366); that she had Johnson write a statement about what
happened13; that she then asked that Rodriguez be brought to her office; that Rodriguez "made
it out to be that Dominique was the only one that had thrown product at her, that had cussed her
out, that she wasn't doing her job right…. [Johnson] was not doing her job right and she was just
giving it back to her" (transcript page 368); that Rodriguez gave a written statement, General
Counsel's Exhibit 24, which is described above; and that Raymundo
"told me he was right in front of them; that he saw the whole thing; that he saw Luz
throwing the - - in fact throwing the product at Dominique, and confirming the first story I
heard that they had a verbal confrontation; that they had looked at each other, had faced
each other, and that there was no physical contact. And he didn't see Dominique throw
any product. [Transcript page 369]
King further testified that Raymundo gave a written statement, Respondent's Exhibit 21; that
she asked Raymundo to find out if any other employee saw what happened and he brought
Ronda to her office; that Ronda told her that he saw Luz get mad at Dominique for not doing her
job right and throwing the product back at her; that she asked Ronda if he saw Dominique throw
product at Luz "and he told me no" (transcript page 371); that she helped Ronda write out a
statement by asking him again what happened and he dictated while she wrote; that she gave
the statement to Ronda, he read it, she asked him if there were any changes, he said "no," and
Ronda signed the statement; that at no point during her conversation with Ronda did he say
anything about Johnson having thrown product; that she sent Ronda back to work, called
Rodriguez back into her office, and told her that she was going to have to suspend her for
throwing product; that while throwing product calls for immediate termination, she suspended
Rodriguez so she discuss the matter with Campo since she was not the one who makes the
final decision about terminations; that when she told Rodriguez that she was suspended for
throwing product Rodriguez asked her if Dominique was going to be suspended; that she
prepared a document memorializing the suspension and she read the document in Spanish to

13 Respondent's Exhibit 20. The statement, which was not offered for the truth of the matter
asserted therein, reads as follows:
10-31-06
2nd cutter was not properly cutting and it was resulting in me getting behind and that
2nd cutter threw the 2nd leg at me. I said what are you doing. She said you can't cut. I
said you ain't about 2 [sic] tell me I can't cut. She said Fuck you. I said come and fuck
me up. I raise[d] my arms, she walk toward me with the scissors in her right hand. I
backed up. The 1st cutter said what's going on. She turned back facing the cutting
board. I walk[ed] off the line throw[ing] my cutting glove into the sink. Christian stop[ped]
me and said where are you going. I said I' m not working no more. I come 2 [sic]
Victoria['s] office cause things was going to … [escalate]
Johnson did not testify at the trial herein.
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Rodriguez word for word, and then had Rodriguez sign the document; that she told Rodriguez to
come back the following Friday for a job evaluation; that she did not tell Rodriguez that her
version of the event was all lies; that she did not call Rodriguez any names; that Rodriguez was
suspended because there had to be preparation for the job review, "[y]ou have to look at
whether the employee's probationary or not…. previous work history …., attendance….,
precedence, what has the Company done before, [and] consistency in any - in any human
resource department is always the key" (transcript pages 377 and 378); that she "was pretty
much told by Armando [Campos] and Charles who had been there for over 10 years now
(apparently referring to Charles Rigdon, who is the Respondent's General Manager and who is
located in Morganton), that throwing product has always been termination, period. So there was
no question in my mind then that Luz was going to be terminated" (transcript page 378); that
Respondent's Exhibit 23, which is a payroll change notice that she prepared for Rodriguez
dated November 3, 2006, gives as the reason for termination "Misconduct"; that misconduct
could be anything; that she met with Rodriguez on Friday November 3, 2006 and she had
Raymundo present because Rodriguez had been so ugly toward her when she suspended
Rodriguez; that Cua came into the meeting later because he was the one who was going to
have to walk her out; that at the November 3 meeting she asked Rodriguez if she remembered
that during orientation she was told that throwing product calls for termination and Rodriguez
said "yes"; that she then told Rodriguez that she was terminated; that Rodriguez allegedly said
"tell me that you're suspending me because I'm with the Union" (transcript page 380); that she
told Rodriguez that she was being terminated for throwing product; that Rodriguez again said
"tell me you're terminating me because I'm with the Union"; that she told Rodriguez that her job
was being terminated; that Rodriguez left with Cua; that she has two monitors in her office, with
one showing the outside view of the front and back of the property, and the other one showing
nine different views from nine different cameras inside the plant; that she did not have anything
pointing out to Leg Debone; that there is a video tape for the nine cameras which only records
what she has on the monitors; that there is a monitor in Plant Manager Doug Hatley's office
which is facing line 1 Leg Debone but it would not be able to catch anything in the middle of the
Leg Debone lines; that other employees have been terminated for throwing product,
Respondent's Exhibits 24 (Luis Aguilar), 25 (Juleo Tomassini for "throwing chicken down a
drain"), 26 (Raynaldo Moralez), and 27 (Jeronimo Say); and that she did not say "you've only
been here a little while and you're already causing problems" either during her interview meeting
with Rodriguez or her suspension meeting with Rodriguez.
On cross-examination King testified that when the line is running and an employee
leaves the line without permission, this causes the line to stop; that if an employee feels
intimidated enough to cry, the employee has the right to stop the line anytime the employee
wants to come to talk to her; that employees are routinely issued warnings for leaving the line
without permission, for cussing, and for not cutting the chicken properly; that she was not
working in the plant when the incident covered by Respondent's Exhibit 26 occurred, she did not
review the documents in this employee's personnel file before she testified herein, and there are
no documents in the employees personnel file to reflect what the circumstances were
surrounding the throwing product incident by Moralez (transcript page 407); that on General
Counsel's Exhibit 31, which is a copy of a computer record of Moralez's termination, the reason
given for the action is "Horseplay/throwing product"; that Moralez's payroll notice, Respondent's
Exhibit 26, just indicates throwing product; that she was not employed at the involved facility
when the incident covered by Respondent's Exhibit 27 occurred, she did not review the
documents in that personnel file before she testified at the trial herein, and General Counsel's
Exhibit 30 which is a copy of a computer record of Say's termination, gives as the reason for the
action "Horseplay/Throwing product"; that she was not employed at the involved facility when
Aguilar was discharged for throwing product, she did not review his file before she testified at
the trial herein, and, therefore, she did not know the circumstances under which he was
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discharged; that she was not employed at the involved facility when Tomassini was discharged
for "throwing chicken down the drain" (Respondent's Exhibit 25), and she did not review his file
for any notes concerning the circumstances of him putting the product down the drain before
she testified at the trial herein; that she would describe what is alleged to be Tomassini's act as
destruction of Company property; that Rodriguez denied throwing the product at Johnson but
Rodriguez said that she threw the product at the table; that after she suspended Rodriguez she
did speak to a couple of the employees who were working near Rodriguez and Johnson when
the incident occurred but they denied seeing anything and there was no need to put anything in
the file for it; that she did not remember which employees she spoke with regarding what they
witnessed; that she did not recall whether she said anything about speaking to the other
employees when she gave her affidavit to the Board; that the prohibition against throwing
product refers to the throwing of anything; that General Counsel's Exhibit 29, which refers to
employee Marcelino Bulux who is still employed at Respondent, indicates that Bulux threw a
handful of ice at another employee hitting him on his side; that General Counsel's Exhibit 28 is a
Disciplinary Report, a written warning, for Juan Garza dated "3-22-07" for engaging in horseplay
where he picked up another employee and threw the other employee (partially on the belt where
product is transported which could result in line shutdown); and that Cynthia Garza is still
employed by the Respondent notwithstanding that she was involved in an incident where she hit
another employee in the face with chicken neck with the head still attached, General Counsel's
Exhibit 26. Counsel for Respondent stipulated (a) there was nothing in Cynthia Garza's file that
would reflect any discipline, and (b) with respect to General Counsel's Exhibits 34 and 35, both
of which are copies of computer records and both of which give as the reason for termination
"Horseplay/Throwing product," that there is nothing else other than what is in this record that
would reflect the circumstances of the incidents involving Aguilar and Tomassini, respectively.
Subsequently King testified that she did not review the video for the one camera that
faced the Leg Debone department because there was no way that it would have recorded what
happened between Rodriguez and Johnson since you could barely see lines 1 and 2; that she
has told employees that they can just walk away from the line if they feel intimidated without
asking permission or speaking to a supervisor; that she herself did not do an independent
review to look at prior personnel decisions regarding throwing product but rather she asked
Campos and Rigdon what Respondent had done before with incidents of throwing product; that
she personally did not look at the personnel files of other employees who were terminated for
throwing product; that there are two cameras in the Leg Debone department; that she did not
know if the cameras in the Leg Debone department can be adjusted so that they take in more
than lines 1 and 2; that she did not look at the cameras but rather just at the monitor; and that
she did not review any tapes.
On recross King testified that she assisted counsel in formulating Respondent's
response to the unfair labor practice charges; that in the response it is indicated that
"Respondent admits that it maintains a number of security cameras on premise and, in fact,
there are three in what is generally referred to as the Leg Debone area" (transcript page 451);
that she told employees that they could walk away from the line if they are upset or intimidated;
that she did not have a meeting where she told all the employees this, it was just a practice that
everybody knows from previous incidents when people had walked off the line to come and talk
with her; that Campos, Yolandra Cardinez, and Hernandez told her that there had been other
discharges for throwing product in the past; that Campos told her, for Rodriguez's job review,
that if throwing product meant termination, then Rodriguez should be terminated as that was the
past practice; that Campos did not have any documents with him during this conversation to
show that other people had been discharged for throwing product, and he did not give her any
specific examples of discharges for this conduct; and that she never looked in the documents
for examples until she was responding to the unfair labor practice charges.
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Cua testified that King called him to her office and told him that he had to walk someone
out who she suspended; that he went to King's office; that he overheard King telling Rodriguez
that she "needed to sign her statement, whatever she been told her, but she relayed Company
policy, and just sign here. … she … started reading to her, and then said, 'Here. Sign it right
here.' And she signed it, and then I walked her out" (transcript page 468) ; that on Friday
November 3 he was present for the whole meeting when Rodriguez was informed that she was
being terminated; that during the November 3 meeting King told Rodriguez that she was
terminated for throwing product and this was something that was explained during orientation;
and that Rodriguez told King two times that she was terminating her because she protested the
day the employees stopped working.
Subsequently Cua testified that 23 chicken legs a minute are processed on line 11 in
Leg Debone; and that the individual employee working on line 11 is expected to individually
process 23 chicken legs a minute.
Analysis
Paragraph 6 of the complaint alleges that on October 27 Cua and King threatened
employees with calling immigration.14
General Counsel on brief, contends that it is a violation of the Act to threaten employees
with calling the Immigration and Naturalization Service (INS or Immigration) when employees
engage in union or protected activity, Precision Concrete, 337 NLRB 211 (2001), enfd in
relevant part at 334 F.3d 88, at 93 (2003) and Westchester Iron Works Corp., 333 NLRB 859

14 Counsel for General Counsel's motion to correct the complaint to correctly spell the
surname of the Human Resource Supervisor identified therein is hereby granted. The name
Miguel Cua will be substituted for Miguel Puac. Counsel for General Counsel also makes
another motion for the first time in her brief, namely to amend the complaint to allege that
Respondent violated Section 8(a)(1) of the Act by conditioning continued employment with
Respondent on a waiver of the right to engage in future concerted activity when King on
October 27 told employees that when they return to work on October 30 the glove policy put into
effect on October 27 would still be implemented, and that if they did not want to work under that
policy "don't even bother coming." According to her own testimony, what King said was as
follows:
Look, look guys, this is what you wanted, you got what you wanted. When you come
back on Monday, you're going to get your three pairs of better yellow gloves you wanted.
If you want to work, come to work. But if you don't want to work, don't even bother
coming. Let's not go through this again. [Transcript page 337]
It does not appear that with this language Respondent, by King, was conditioning continued
employment on a waiver of the right to engage in future protected concerted activity. What King
was saying was that the policy was not going to change, if they wanted to work with the new
policy that was fine, but if they did not want to work on Monday they should not bother coming to
work. It does not appear that King was either explicitly or implicitly telling the employees that to
be able to go to work on Monday they had to waive their right to engage in future protected
concerted activity. Additionally, whether this language in the circumstances existing here is a
violation of the Act is first being brought up on brief after the close of the trial. Does Counsel for
General Counsel believe that Respondent has had sufficient notice that the lawfulness of this
language would be at issue? Counsel for General Counsel's Motion to further amend the
complaint is denied.
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(2002); that it is more than probable that Cua made this violative threat; that King's denial that
she threatened to call Immigration is not credible in that throughout the trial King's testimony
was inconsistent and often contradicted Respondent's other witnesses; that King had a
propensity to form testimony to suit Respondent's case; and that Rodriguez was a credible and
forthright witness.
Respondent on brief argues that both Cua and King denied threatening to call
Immigration on October 27 and the evidence offered by General Counsel simply is not credible;
that the only witness offered in support of this allegation is Rodriguez, who is a most
unimpressive witness; that no other employee supported Rodriguez's testimony; that although
there were at least 50 other employees in the vicinity when King was speaking to employees
when they came back to get their paychecks, including Rodriguez's friends Edgar and Martha,
no other employee supported Rodriguez's dramatic testimony that King told the employees "not
to force her to call the police or [I]mmigration because I will send you back to your country"
(transcript page 161); that Rodriguez's testimony about these threats has the ring of being
contrived in that in both instances she alleges that Cua said "don't make us call - have to call
Immigration" (transcript page 157) and King allegedly said "not to force her to call the police or
Immigration" (transcript page 161); that the similarity of these alleged statements indicates
fabrication; that Rodriguez in general was contradicted and incredible in numerous respects;
that Rodriguez admittedly lied when she was asked for her Company I.D. on October 31; that
while Rodriguez testified that she knew no English at all (Respondent cites transcript page 200
where Rodriguez testified "I don't even know how to speak English." But at transcript pages 149
and 150, at the outset of her testimony, Rodriguez was asked if she spoke English and she
replied "No, a little bit."), Ronda and Raymundo testified that Rodriguez uttered at least two
words in English during her confrontation with Johnson; that while Rodriguez testified that she
hid behind Ronda during her confrontation with Johnson, Ronda and Raymundo testified that
this was not the case; and that the employees' work stoppage had become unprotected at the
time the threats were allegedly were made and consequently, even if, assuming arguendo, they
were made, they did not violate the Act.
I do not believe that Counsel for General Counsel has demonstrated by a
preponderance of the evidence that Cua and King threatened to call Immigration on October 27.
Counsel for General Counsel produced only one witness to support these allegations. That
witness, Rodriguez, is one of the two alleged discriminatees in this proceeding. She has a
monetary interest in the outcome of this proceeding. Her testimony is not corroborated albeit
there were many, many people present when the statements were allegedly made. Additionally,
it is not clear why King, on October 27 when she was telling the employees that the glove policy
was going to be enforced on Monday October 30 and the employees had to make up their
minds whether they wanted to work on Monday, would tell the employees to leave and not to
force her to call Immigration. There is no allegation that the employees were engaged in a sit
down strike when they came back to the facility in the afternoon to pick up their paycheck.
Indeed it appears that it was just the opposite. At least one employee, according to Rodriguez's
own testimony, told King that they had come to pick up their paycheck and they did not want to
hear what King had to say. In other words, it has not been shown that the employees wanted to
do anything other than get their paychecks and get out of Respondent's facility. As pointed out
by Respondent, Rodriguez admittedly lied about her Company I.D. I believe that Rodriguez also
lied under oath about what she said in English to Johnson during their confrontation on October
31. I believe that the two words that Ronda and Raymundo heard Rodriguez say to Johnson
during this confrontation were "Fuck you." (See Respondent's Exhibit 20 which was not received
for the truth of the matter asserted.) A threat to call Immigration is a very serious charge.
Counsel for General Counsel has not produced sufficient evidence to warrant a finding that this
threat was made by either Cua or King on October 27.
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Paragraph 7 of the complaint alleges that Respondent terminated Zamora on October 30
and Rodriguez on October 31 because they engaged in concerted activities for the purpose of
collective bargaining or other mutual aid or protection and in order to discourage employees
from engaging in such concerted activities for the purpose of collective bargaining or other
mutual aid or protection.
With respect to Dimas (a.k.a.Zamora), General Counsel on brief contends that the
evidence establishes a prima facie violation under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982) and NLRB v. Transportation
Management Corp., 462 U.S. 393, 395 (1983) (approving Wright Line analysis) in that (a) Dimas
was engaged in protected concerted activity when she participated in the walk out and when
she acted as spokesperson and talked to newspaper reporters, (b) there is no question that
Respondent knew Dimas's role since King testified that Wilson emailed her the newspaper
article in which Zamora's (Dimas) name appears, and (c) the timing of the discharge one
working day after Dimas's protected activity and the pretextual reasons given for the discharge
demonstrate Respondent's motivation to rid itself of Dimas and send a clear message to its
remaining employees; that the reason given by Respondent for the discharge is pretextual
because Respondent treated Dimas as a probationary employee in October 2006 even though
Dimas had worked for Respondent since 1999, except for 4 months; that Dimas's immigration
status is not relevant to whether Respondent unlawfully discharged her because the Act
protects statutory employees who are undocumented aliens, Sure Tan, Inc. v. NLRB, 467 U.S.
883 (1984) and Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002); that an
Administrative Law Judge cannot base his decision to discredit an employee solely on the
employee's use of a false social security number to obtain employment, In re Double D
Construction Group, 339 NLRB 303 (2003)15; to the extent that the discharge of Dimas is based

15 That case is distinguishable. There the employee did subsequently acquire his own valid
social security number, and not long after his termination, he provided information to the
Respondent in order to correct his own record. There, the majority of the Board concluded that
the Judge's discrediting of the employee was based solely on his use of a false social security
number to obtain employment; and that this amounted to a disqualification of the employee for
his conduct. Here Dimas did not acquire her own valid social number when she received the
SSA letter. Rather she went out and purchased a whole new identity, namely a new false name,
a new false social security number (card), a new false permanent resident card, and a new false
birthday. Respondent's Exhibit 6. And then she gave her new documentation to the Respondent
to keep her job. As pointed out in Hoffman Plastics, this is a crime. While she worked for
Respondent under her new identity, she never attempted to correct the record. When she
testified at the trial herein her remorse for using the identity of another person consisted of her
testifying "I didn't want to be without employment, and now I regret doing it because it didn't do
me any good." (transcript page 148) Forgetting the legal technicalities for the moment, common
sense would dictate that if a person is willing to commit a crime to get a job, then commit a
serious crime to keep the job, consideration must be given to the fact that the person would
commit a crime (intentionally, falsely testifying under oath about material facts) to get back at
those who, from her viewpoint, took that job away from her. As noted above, Herrera testified
that when he escorted Dimas out of the facility she told him that he "cheated her out of her job."
(transcript page 500). Dimas did not testify on rebuttal to deny making this statement. By law,
she did not have the legal right to hold that job in the first place. Here, no matter what the
outcome, under Sure Tan, Inc., supra, and Hoffman Plastic, supra, there will be no
reinstatement or back pay for Dimas. To resolve whether she was unlawfully terminated I do not
have to, and I do not, rely on her credibility. This determination was made at the time of her
Continued
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on credibility, the testimony of Dimas should be credited over that of Respondent who cannot be
found to be without fault in the acceptance of a new name, social security number, and birth
date from an employee whom they had employed since 1999; that King cavalierly testified that
she had no right to question Dimas about her new documentation notwithstanding that she
knew that Dimas had worked for Respondent since 1999; that regardless of whether Dimas was
a new probationary employee or a senior employee employed at Respondent since 1999,
Respondent failed to treat Dimas in the same manner as other injured employees and instead
seized upon a reason to discharge her; that while King told Dimas that she could not receive a
leave of absence, Dimas was not asking for a leave of absence; that Dimas was requesting light
duty for 5 days; that Respondent did not even attempt for Dimas to go to a company doctor to
determine if her pain, a type of pain commonly associated with the repetitive nature of the work,
was work related; that Respondent's medical records and OSHA records establish that
Respondent has accommodated both work and non-work related injuries for employees in their
probationary period (i.e. probationary employee Alisha Rutherford was given light duty after she
sustained a non-work related injury, General Counsel's Exhibits 4 and 18) and beyond their
probationary period (In addition to Rutherford, Counsel for General Counsel gave 14 examples
of Respondent's approach in her brief.); and that, even though Dimas did not ask for a leave of
absence, those cases cited by Respondent where it did not grant probationary employees a
leave of absence are distinguishable.
With respect to Dimas (a.k.a. Zamora) and Rodriguez, Respondent on brief argues that
the complaint by implication concedes that the October 27 protest was unprotected in that it is
not alleged that calling in the police was a violation of the Act; that General Counsel effectively
concedes the unprotected "tresspassory" (Respondent's brief page 21) nature of the job action;
that an employer can terminate leaders of an unprotected job action without violating the Act;
that while discussing employee grievances with the press may in certain circumstances
constitute protected activity, this particular newspaper article cannot be divorced from the
unprotected work stoppage itself; that because the activities of Dimas and Rodriguez were not
legally protected the unlawful discharge allegations fail as a matter of law; that General Counsel
failed to establish animus toward either the work stoppage or the newspaper article; that Dimas
and Rodriguez were terminated solely for independent intervening events that occurred early
the following week; that General Counsel has failed to make a prima facie showing sufficient to
support an inference that the protected conduct was a motivating factor in the employer's
decision to terminate these two employees; that there must be some evidence of employer
_________________________
testimony and took into consideration her demeanor (lack of remorse for committing a crime and
she conveyed the distinct impression while testifying at the trial herein the job was what
mattered the most), the weight of the respective evidence can be determined without including a
consideration of Dimas's lack of credibility and it does not affect her credibility or the lack
thereof, established or admitted facts are what they are in that they do not rehabilitate this
witness, and one would have to, in determining inherent probabilities and reasonable inferences
drawn from the record as a whole, take into consideration that witness Dimas committed a
serious crime to get her job (false social security number), she admittedly committed a very
serious crime to keep her job (As pointed out in Hoffman Plastic, supra, it is a crime for an
unauthorized alien to subvert the employer verification system by tendering fraudulent
documents.), and her only remorse in the end is that she regretted doing it because "it didn't do
me any good." (transcript page 148) It is one thing to use a nonvalid social security number. It is
quite something else to buy another person's identity. To treat such conduct lightly could be
misconstrued as encouraging a practice which has become widespread, namely identity theft,
which practice can have a devastating effect on its victims, even if limited to just trying to
straighten out social security records and the ramifications which flow there from.
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animus directed at the employee's protected activity; that an employer may act on the
reasonable belief that an employee committed the offense charged; that the issue is whether
the employer's belief as to the facts was honestly held and whether these facts (as believed)
were such that the employer likely would have been motivated to act as it did; that while the
timing of the two terminations brings into question an inference of animus, the timing actually
favors Respondent, close timing between protected activity and termination may go a long way
toward establishing animus when there is no apparent intervening cause for the termination, but
when there is such an intervening cause and the termination follows shortly thereafter, the
timing factor favors the employer, Woodruff & Sons, Inc., 265 NLRB 345, 347 (1982); that this is
not one of those rare cases in which the Board can infer animus 'from evidence of blatantly
disparate treatment' (Respondent's brief page 27) New Otani Hotel & Garden, 325 NLRB 928
(1998); that although Counsel for General Counsel attempted to show disparate treatment she
fell short of establishing 'blatant disparity' (Id.); that while Respondent sometimes
accommodated alleged workers' compensation injuries that later turned out to be non-work
related, Respondent did so only while the cause of the condition was being investigated and
only when the safety department was supervising and directing the employee's medical care;
that "[t]here is no evidence that Respondent ever accommodated an employee based on a note
that the employee obtained from her own personal physician" (Id. at 28, emphasis added); that
Respondent treated Dimas (a.k.a. Zamora) as a probationary employee since September 2006,
long before the work stoppage; that there is no showing of blatant disparity regarding Dimas;
that with respect to Rodriguez, there is zero tolerance for throwing product, two co-workers and
a supervisor told King that they observed Rodriguez throwing product, whether she actually did
is immaterial, and Respondent clearly believed in good faith that she had thrown product; that
whether Johnson threw product is not clear; that Raymundo did not see Johnson throw product;
that Johnson denied throwing product (This would be hearsay since Johnson did not testify at
the trial herein.); that while Ronda testified that he saw Johnson throw product and he told King
about this, the statement he signed does not indicate that Johnson threw product and he
testified that the statement was accurate and it contained everything he told King; that Johnson
was terminated a few months after her confrontation with Rodriguez for attendance problems
and there was no reason for King not to terminate her over her October 31 confrontation with
Rodriguez, if Johnson did in fact throw product; that there is insufficient record evidence upon
which to base a finding of unlawful motivation; that Counsel for General Counsel has not shown
animus; that assuming arguendo that General Counsel established a prima facie case,
Respondent carried its Wright Line, supra, burden in that Respondent's standard practice
regarding probationary employees who are medically restricted for personal reasons is to
terminate their employment, subject to reapplying and being rehired after 30 days; that Dimas
was treated consistently with this practice; that Rodriguez was terminated consistently with
Respondent's policy and practice of terminating employees who throw product; and that
assuming arguendo that Dimas was unlawfully terminated, she is not eligible for the standard
reinstatement and back pay remedy since the decisions in Sure Tan, Inc., supra, and Hoffman
Plastic, supra, hold that the Board is without power to award reinstatement or back pay to an
alien.
Regarding the arguments made by Respondent with respect to Dimas (a.k.a. Zamora),
the fact that it did not specifically take any action against Dimas for her role in what Respondent
describes as an unprotected job action demonstrates that Respondent was not relying on this at
the time of her termination. The same would apply with respect to Rodriguez. Both Dimas and
Respondent played the system. Neither one came into this proceeding with clean hands. Dimas
committed crimes to get and keep her job with Respondent. Respondent accommodated Dimas
notwithstanding that any reasonable person would have asked what was going on when a
person changes their name, social security number, and their birth date, making them more
than 2 years younger than previously represented. If the situation at hand were approached in
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terms of the equities involved, one might ask why Respondent did not treat Dimas as a senior
employee on October 30. In my opinion, Respondent knew exactly what was going on with
respect to her employment status. But Dimas herself created the situation when she gave
Respondent the fraudulent documentation. The fiction of Dimas being a probationary employ
was put in place in September 2006, long before the October 27 work stoppage. And it was put
into place effectively at the behest of Dimas as a means of her keeping her job. So from a labor
law standpoint, the fact that Dimas on October 30 was a probationary employee could not have
been unlawfully motivated. Respondent took advantage of the situation. But Dimas put in play
the means by which Respondent was able to take advantage of the situation, and this was done
long before the work stoppage. Under Wright Line, supra, Dimas engaged in protected
concerted activity. Even if one takes the position that the work stoppage lost the protection of
the Act because the employees refused to leave the Company's premises resulting in the police
being summoned, there is still the newspaper article in which Dimas (a.k.a. Zamora) aired a
grievance of Respondent's employees. It has not been shown that anything occurred with
respect to the newspaper interview which would cause Dimas to lose the protection of the Act.
The interview occurred away from Respondent's property and while its focal point might have
been the reasons for the work stoppage, the interview can and should be treated separately
from the walkout. Therefore, Dimas engaged in protected activity and the Respondent knew
about it before she was terminated. But has Counsel for General Counsel shown animus on the
part of Respondent? Has Counsel for General Counsel shown that the termination was
unlawfully motivated? Counsel for General Counsel cites four factors, namely (a) the timing of
the discharge just one workday after the work stoppage, (b) the pretextual reasons given by
Respondent because Respondent treated Dimas as a probationary employee, (c) the assertion
that Dimas was treated disparately, and (d) Dimas did not ask for a leave of absence and this
was King's reason for terminating Dimas. Dimas herself chose the timing in that she was the
one who presented Respondent on October 30 with a situation it had to resolve. No inference of
animus or unlawful motivation can, therefore, be drawn from the timing alone. With respect to
Counsel for General Counsel's contention that the reason given by Respondent for Dimas's
termination is pretextual because she should not have been treated as a probationary employee
on October 30, one has to accept the fact that Dimas had been treated as a probationary
employee since September 2006 or, in other words, for some time before October 30. That was
the status occasioned by Dimas's own use of fraudulent documentation when she changed her
name, social security number, resident alien card, and birth date. She participated in this fiction
long before the work stoppage. When this fiction began it had nothing to do with animus or
unlawful motivation on the part of Respondent toward Dimas's protected activity. Consequently
no weight can be given to the contention that treating Dimas as a probationary employee on
October 30 was pretextual. As Respondent argues on brief, (1) while Respondent sometimes
accommodated alleged workers' compensation injuries that later turned out to be non-work
related, Respondent did so only while the cause of the condition was being investigated and
only when the safety department was supervising and directing the employee's medical care,
and (2) there is no evidence that Respondent ever accommodated an employee based on a
note that the employee obtained from her own personal physician. It has not been shown by the
record herein that these arguments of the Respondent are false. Finally, Counsel for General
Counsel finds fault in the fact that albeit Dimas did not verbally ask for a leave of absence on
October 30, King approached her request in that manner. As noted above, Dimas's doctor's
note (Actually the note was from a physician's assistant at Table Rock Family Medicine clinic.)
reads, "Light work or no work … [see left] arm for one week." For King to interpret the note as
asking that Dimas be given a week off from work does not appear to be unreasonable. The
record considered as a whole does not warrant any inference of animus or unlawful motivation
on the part of Respondent. The Respondent did not violate the Act in terminating Dimas (a.k.a.
Zamora).
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With respect to Rodriguez, General Counsel on brief contends that but for Rodriguez's
participation in the work stoppage Respondent would not have discharged Rodriguez; that when
Rodriguez participated in the work stoppage and spoke to newspaper reporters on behalf of the
participating employees who were protesting Respondent's change in the glove policy, she was
engaged in concerted activity that is protected by the Act; that King admits that she saw the
newspaper article in which Rodriguez was quoted as the spokesperson of the employees who
engaged in the work stoppage; that the first requirements of Wright Line, supra, are met, namely
that the employee engaged in activity protected by the Act and the Respondent had knowledge
of that participation; that Respondent's unlawful motive in discharging Rodriguez because of her
protected activities is established by the suspicious timing of the discharge, the one-sided
investigation of the events leading to the discharge, and the disparity between Respondent's
treatment of Rodriguez and of other employees involved in similar incidents; that Raymundo
testified that he could give a warning for throwing product but he was not involved in the
decision to discharge Rodriguez; that the disparity in the treatment of Johnson and Rodriguez is
a result of Rodriguez's involvement in the work stoppage and her designation as a
spokesperson for the other employees; that while King testified that precedence is the most
important factor considered by Respondent, prior to Rodriguez's discharge she did not conduct
an independent review to look at prior personnel decisions regarding throwing product nor did
she personally examine the personnel files of other employees terminated for throwing product;
that she relied on the representation of top management that Respondent had a precedence of
discharging employees who throw product; that King asserts that Campos stated that if throwing
product meant termination then Rodriguez should be discharged but he did not provide King
with any documents to show King that other employees had been terminated for similar
conduct; that Respondent did not present one instance of discharge of an employee who
returned poorly cut chicken to an employee on the line either by tossing it on the table in front of
the employee or by any other method; that the examples cited by Respondent involve situations
where the employee who was discharged was engaged in horseplay and/or the sponsoring
witness was unable to testify about the circumstances surrounding the discharge; that
Rodriguez was not engaged in horseplay; that Counsel for General Counsel presented evidence
that Respondent failed to discharge or even suspend employees whom it accused of throwing
items in the plant, namely (a) Gerra, who is presently employed at Respondent, hitting another
employee in the face with a chicken neck with the head still attached, and (b) Buluz, who is
presently employed at Respondent, receiving a verbal warning for throwing ice and hitting
another employee with it; and that the timing of the discharge of Rodriguez, the sham
investigation into the chicken throwing incident, and the disparity of Respondent's treatment of
Rodriguez establish that Respondent discharged Rodriguez because of her protected concerted
activity or participating in a work stoppage and of speaking to the press on behalf of employees.
Respondent's arguments regarding Rodriguez are set forth above.
As pointed out by Counsel for General Counsel on brief, that the first requirements of
Wright Line, supra, are met, namely that Rodriguez engaged in activity protected by the Act and
the Respondent had knowledge of that participation. As noted above, Counsel for General
Counsel goes on to contend that Respondent's unlawful motive in discharging Rodriguez
because of her protected activities is established by (1) the suspicious timing of the discharge,
(2) the one-sided investigation of the events leading to the discharge, and (3) the disparity
between Respondent's treatment of Rodriguez and of other employees involved in similar
incidents. Again, the employee Rodriguez dictated the timing in that she admittedly got into a
confrontation with Johnson on October 31. Rodriguez herself presented the Respondent with a
situation that it had to resolve. The timing is not suspicious, and it should not reasonably lead to
the conclusion that animus or unlawful motivation should be inferred based on this. The
investigation of the incident was not one-sided. King spoke with and had written statements
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from Johnson, Rodriguez, Raymundo, and Ronda. If Ronda's testimony had not been equivocal
about whether he advised King that he saw Johnson also throw product, this conclusion might
be different. But in view of his testimony that his written statement was accurate and complete,
and the written statement does not mention Johnson throwing chicken, I do not believe that it
can be concluded that Respondent's investigation of the incident was one-sided. But as pointed
out by General Counsel on brief, while King testified that precedence is the most important
factor considered by Respondent, prior to Rodriguez's discharge she did not conduct an
independent review to look at prior personnel decisions regarding throwing product nor did she
personally examine the personnel files of other employees terminated for throwing product.
Instead King relied on the representation of top management that Respondent had a
precedence of discharging employees who throw product. King asserts that Campos stated that
if throwing product meant termination, then Rodriguez should be discharged but he did not
provide King with any documents to show King that other employees had been terminated for
similar conduct. As General Counsel points out on brief, Respondent did not present one
instance of discharge of an employee who returned poorly cut chicken to an employee on the
line either by tossing it on the table in front of the employee or by any other method. The
examples cited by Respondent involved situations where the employee who was discharged
was engaged in horseplay and/or Respondent's sponsoring witness was unable to testify about
the circumstances surrounding the discharge. I agree with General Counsel that Rodriguez was
not engaged in horseplay. Additionally, Counsel for General Counsel presented evidence that
Respondent failed to discharge or even suspend employees whom it accused of throwing items
in the plant, namely Gerra and Buluz. And finally Raymundo testified that he has given written
warnings to employees for throwing items. Since Counsel for General Counsel has
demonstrated that there was no real investigation of the precedent involving throwing product
and there is a blatant disparity between Respondent's treatment of Rodriguez and the treatment
of other of its employees involved in throwing product or other items, she has shown that an
inference should be drawn that animus regarding protected activity and unlawful motivation on
the part of Respondent caused Rodriguez's termination. I believe that this finding is warranted
notwithstanding the fact that there is no other finding of an independent violation of the Act.
Respondent argues that even if Counsel for General Counsel meets her burden under
Wright Line and has made a prima facie showing sufficient to support an inference that the
protected conduct was a motivating factor in the termination of Rodriguez, the Respondent has
shown that it had a legitimate business reason for Rodriguez's termination. It is pointed out by
the Respondent that if an employer establishes legitimate grounds for adverse action and there
is no evidence of similarly situated employees being treated more favorably, the employer has
carried its Wright Line burden. Respondent argues that Rodriguez was terminated consistently
with policy and practice. I do not agree with Respondent's argument. Counsel for General
Counsel demonstrated that this is not the case in that she showed similarly situated employees
being treated more favorably. Counsel for General Counsel has shown blatant disparate
treatment.
Can one reach the conclusion that an adverse inference should be drawn with respect to
Rodriguez and not with respect to Dimas even though both employees were engaged in the
same concerted activity? I believe that such an approach is appropriate. The situations of Dimas
and Rodriguez can be viewed differently based in whether Counsel for General Counsel met her
burden of proof under Wright Line regarding them individually. Respondent's treatment of
Rodriguez vis-a vis other of Respondent's employees warranted an inference of animus and
unlawful motivation. In my opinion, Counsel for General Counsel did not make that showing
regarding Dimas. And I do not believe that the fact that Counsel for General Counsel succeeded
in Rodriguez's situation carries over to Dimas.
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Conclusions of Law
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended16
By terminating Rodriguez on October 31 (actually on November 3) because she
engaged in concerted activities for the purpose of collective bargaining or other mutual aid or
protection and in order to discourage employees from engaging in such concerted activities for
the purpose of collective bargaining or other mutual aid or protection, Case Farms of North
Carolina, Inc. has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged an employee, it must offer her
reinstatement and make her 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).17
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended18
ORDER
The Respondent, Case Farms of North Carolina, Inc. of Morganton, North Carolina, its
officers, agents, successors, and assigns, shall

16 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.
17 On brief Counsel for General Counsel requests that the interest be compounded. She
points out that his is not currently the Board practice. Unless and until the Board changes its
practice, the current Board practice will be applied. Counsel for General Counsel also requests
that (a) the notice be posted in Spanish and English, and (b) Respondent be required to hold
group meetings with employees in which an official of the Board can read the Notice to
Employees in Spanish and English. The request to require that the notice be posted in Spanish
and English is reasonable under the circumstances of this case, and such request will be
granted. No need has been shown herein for the granting of the request to hold group meetings
with employees in which an official of the Board can read the Notice to employees in Spanish
and English, and such request is denied.
18 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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(1) Cease and desist from
(a) Terminating an employee because she engaged in concerted activities for the
purpose of collective bargaining or other mutual aid or protection and in order to discourage
employees from engaging in such concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Luz Rodriguez 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.
(b) Make Luz 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 the
decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharge, and within 3 days thereafter notify the employee 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 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 in Spanish and English at its facility
in Morganton, North Carolina, copies of the attached notice marked “Appendix.”19 Copies of the
notice, on forms provided by the Regional Director for Region 11, 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 in Spanish and English to all current employees and former employees
employed by the Respondent at any time since October 31, 2006.
(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.

19 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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IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C., September 28, 2007.
____________________
John H. West
Administrative Law Judge
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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 terminate you because you engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection and in order to discourage you from engaging in such
concerted activities for the purpose of collective bargaining or other mutual aid or protection.
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 Luz Rodriguez 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 Luz Rodriguez whole for any loss of earnings and other benefits resulting from her
discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to the unlawful
discharge of Luz Rodriguez, and WE WILL, within 3 days thereafter, notify her in writing that this has
been done and that the discharge will not be used against her in any way.
Case Farms of North Carolina, Inc.
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.
4035 University Parkway, Republic Square, Suite 200 Winston-Salem, North Carolina 27106-3323
Hours: 8 a.m. to 4:30 p.m. 336-631-5201.
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, (336) 631-5230