Cibao Meat Products

National Labor Relations Board - Board Decisions

Apr 11, 2003

338 N.L.R.B. 934 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 934
Cibao Meat Products and Local 169, Union of Nee-
dletrades, Industrial and Textile Employees,
AFL–CIO. Case 2–CA–32811
April 11, 2003
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
On August 17, 2001, Administrative Law Judge How-
ard Edelman issued the attached decision. Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and Respondent filed a
reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and affirms the
judge’s findings1 and conclusions except as set forth be-
low and adopts the recommended Order as modified and
set forth in full below.2
The judge found that Respondent violated Section
8(a)(1) by suspending employee Mario Mendez for 1
day. As more fully set forth in the judge’s decision, Re-
spondent suspended Mendez on January 17, 2000, for
insubordination because he spoke up at an employee
meeting called by Respondent that day. At the meeting,
Supervisor Elizabeth Sandner informed the assembled

1 Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
We further find that the judge’s factual findings are amply supported
by the record evidence, and we reject as unfounded Respondent’s ar-
guments to the contrary.
Some of Respondent’s exceptions are that the judge’s rulings, find-
ings, and conclusions demonstrate bias and prejudice. We are satisfied
on a review of the record that Respondent’s contentions are without
merit. For example, Respondent contends that the judge exhibited bias
by granting the General Counsel’s motion to reopen the record. In his
answering brief, counsel for the General Counsel asserts that he made a
verbal and written motion to reopen the record for the purpose of enter-
ing disciplinary records into evidence, but that the General Counsel “is
unaware that either its oral or written motion to reopen the record has
been granted by the ALJ.” The record does not contain any post-
hearing motion to reopen the record, or any indication that such a mo-
tion was granted. Consequently, there is no basis for finding that the
judge was biased by granting the General Counsel’s motion.
2 We modify the judge’s recommended Order and notice consistent
with our decisions in Ishikawa Gasket America, Inc., 337 NLRB 175
(2001), and Ferguson Electric Co., 335 NLRB 142 (2001), to conform
more closely to the Board’s usual remedial provisions.
The remedy section of the judge’s decision inadvertently states that
Respondent has violated Sec. 8(a)(1) and (3). The judge found else-
where in his decision that Respondent did not violate Sec. 8(a)(3) and
there are no exceptions to that finding.
employees that they were required to help open the plant
gate in the morning before they started work. Mendez
responded that it was not his job to open the gate, it was
security’s job, and that “we are the workers, the employ-
ees, after you open the factory.” Sandner did not inter-
rupt Mendez or ask him to stop speaking. The meeting
took place after the gate was opened for the day by an
employee and there was no evidence introduced that ei-
ther Mendez or any other employee failed or refused to
open the gate after having been directed to do so by
Sandner. Respondent excepts, however, claiming,
among other things, that Mendez’ actions were unpro-
tected insubordination rather than protected, concerted
activity, as the judge found them to be. We disagree.
It is well-settled Board law that the “activity of a sin-
gle employee in enlisting the support of his fellow em-
ployees for their mutual aid and protection is as much
‘concerted activity’ as is ordinary group activity.”3 Such
individual action is concerted as long as it is “engaged in
with the object of initiating or inducing . . . group action
. . . .”4 “Particularly in a group-meeting context, a con-
certed objective may be inferred from the circum-
stances.”5 Thus, an employee, like Mendez, who pro-
tests, in the presence of other employees, a change in an
employment term affecting all employees just announced
by the employer at an employee meeting, is engaged in
the “initiation of group action as contemplated by the
Mushroom Transportation line of cases . . . .”6
The Board has specifically rejected the contention ad-
vanced by Respondent that an employee who protests a
management decision at an employee meeting called to
announce that decision is guilty of unprotected insubor-
dination if the employer did not first solicit the em-
ployee’s views.7 Contrary to Respondent’s contention,
the protected, concerted nature of such protests does not
depend on whether the employer has solicited the griev-
ance of the employees at the meeting.8
3 Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1365
(4th Cir. 1969).
4 Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d
Cir. 1964).
5 Whittaker Corp., 289 NLRB 933, 934 (1988) (emphasis added).
6 Id. Accord: Meyers Industries, 268 NLRB 493, 497 (1984)
(Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir.
1985), cert. denied 474 U.S. 948 (1985), reaffd. 281 NLRB 882 (1986)
(Meyers II), enfd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir.
1987), cert. denied 487 U.S. 1205 (1988).
7 Whittaker Corp., supra.
8 NLRB v. Talsol Corp., 155 F.3d 785, 796–797 (6th Cir. 1998),
enfg. 317 NLRB 290 (1995) (employee who challenged management
speaker about safety issues at employer-called employee meeting was
engaged in protected, concerted activities; no evidence statements or
questions were solicited); CKS Tool & Engineering, Inc., 332 NLRB
1578, 1586 (2000) (employee who challenged management statements,
at employer-called meeting of employees, was engaged in protected,
338 NLRB No. 134
CIBAO MEAT PRODUCTS 935
To be sure, we are sensitive to the fact that an em-
ployee’s right to engage in concerted activity must be
balanced against the employer’s right to maintain order
and respect.9 We recognize that even an employee who
is engaged in concerted activity may, by conduct that is
sufficiently egregious or offensive, lose the protection of
the Act.10 There is no indication in the record, however,
that Mendez’ statement was an intemperate outburst in
response to Respondent’s directive, that it was disruptive
or that it was otherwise so egregious or offensive as to
forfeit the protections of the Act.11 Under these circum-
stances, we sustain his right to make it.
The judge found that Respondent constructively dis-
charged Mario Mendez, who did not return to work after
his unlawful suspension on January 17, 2000. The judge
found that when Respondent unlawfully discharged em-
ployees Jose Luis Mendez, Cayetano Flores, and Mo-
desto Flores the following day—a finding we adopt12—it

gard.

concerted activity; no evidence that comments or questions were solic-
ited).
9 NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965)
(grievance committeeman did not lose the protection of the Act where
he made an impulsive, derogatory remark to an employer representative
in a grievance meeting which was heated on both sides).
10 See United Parcel Service, 311 NLRB 974 (1993).
11 Cf. J. P. Stevens & Co., 219 NLRB 850 (1975), enfd. 547 F.2d
792 (4th Cir. 1976) (employee’s statement, at captive audience speech,
that a coworker’s question should be answered and not ignored held
protected, concerted activity; 22 employees who engaged in planned
conduct designed to disrupt similar meeting and ignored repeated direc-
tions to sit down and stop their disruptions, were not engaged in pro-
tected activity).
12 Member Acosta would hold that the judge improperly relied on
Wright Line in finding that the Respondent unlawfully discharged em-
ployees Jose Mendez, Cayetano Flores, and Modesto Flores. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). Member Acosta notes that the judge spe-
cifically found that the primary reason for the discharge of Jose
Mendez, Cayetano Flores, and Modesto Flores was the belief of the
Respondent’s owner, Heinz Vieluf, that they might protest the unlawful
suspension of Mario Mendez in a manner that would affect their work.
The Respondent believed that the family relationship among the three
employees was a sufficient basis to assume that they would act concert-
edly and the Respondent therefore discharged them. Vieluf admitted
that Jose Mendez “was an agitator within the company” and must be
terminated; that because Cayetano Flores was the brother-in-law of
Jose Mendez, he quite possibly could have the same ideas, and, must
also be terminated; and that because Modesto Flores was the brother of
Cayetano Flores, he could have the same ideas as well, and must be
discharged. Accordingly, because the conduct for which the Respon-
dent claims to have discharged the three employees was protected
concerted activity, the Wright Line analysis is inappropriate. Such
analysis is properly used in resolving cases alleging violations where
the respondent’s motivation for taking the allegedly unlawful action is
disputed. Here, however, it is undisputed that the Respondent dis-
charged Jose Mendez, Cayetano Flores, and Modesto Flores because
the Respondent believed they would act concertedly in the protected
endeavor of protesting Mario Mendez’ unlawful suspension. See Felix
Industries, 331 NLRB 144, 146 (2000).
placed an intolerable burden on Mario Mendez and that
therefore he was constructively discharged. We do not
adopt the judge’s constructive discharge finding. With-
out regard to whether the judge’s finding was supported
by substantial evidence and otherwise in accord with the
law, the complaint never alleged a constructive discharge
and Respondent was never placed on notice at the hear-
ing that the General Counsel was so contending. On the
contrary, during the hearing, when the General Counsel
characterized Mendez’ loss of employment as a
“termination,” Respondent objected and raised the issue
as to whether the General Counsel was arguing a
constructive discharge. In response, the judge ruled that
“the complaint alleges a suspension and that’s what it is.”
The General Counsel replied, “Yes, Your Honor. And
we acknowledge that his employment terminated as of
that day. He did not go back to work after that day.”
Consequently, since the contention was never alleged in
the complaint and was not fully or fairly litigated, we
reverse the judge’s finding in this re 13
ORDER
The National Labor Relations Board orders that Re-
spondent, Cibao Meat Products, Inc., New York, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, suspending, or laying off its employ-
ees because of their protected, concerted activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Jose Luis Mendez, Cayetano Flores, and Modesto Flores
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
(b) Make Mario Mendez, Jose Luis Mendez, Cayetano
Flores, and Modesto Flores whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the
remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspension
and discharges, and within 3 days thereafter notify the
employees in writing that this has been done and that the
13 Tri-City Fabricating & Welding Co., 316 NLRB 1096 fn. 1
(1995); Q-1 Motor Express, Inc., 308 NLRB 1267, 1268 (1992), enfd.
25 F.3d 473 (7th Cir. 1994), cert. denied 513 U.S. 1080 (1995).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 936
suspension and discharges will not be used against them
in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Bronx, New York facility copies of the attached no-
tice marked “Appendix.”14 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by Respondent’s authorized represen-
tative, shall be posted by 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 Respon-
dent 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, Respondent has gone
out of business or closed the facility involved in these
proceedings, Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by Respondent at
any time since January 17, 2000.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that Respondent has taken to comply.

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

The National Labor Relations Board has found that we vio-
lated the Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose not to engage in any of these protected
activities.

WE WILL NOT discharge or suspend you because of
your protected, concerted activities.
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 this Order,
offer Jose Luis Mendez, Cayetano Flores, and Modesto
Flores full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Mario Mendez, Jose Luis Mendez,
Cayetano Flores, and Modesto Flores whole for any loss
of earnings and other benefits suffered as a result of the
discrimination against them, with interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful sus-
pension and discharges, and within 3 days thereafter no-
tify the employees in writing that this has been done and
that the suspension and discharges will not be used
against them in any way.

CIBAO MEAT PRODUCTS

Rita C. Lisko, Esq. and Christian R. White, Esq., for the Gen-
eral Counsel.
Irene Donna Thomas, Esq. (Thomas & Associates), for the
Respondent.
Stuart Lichten, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on May 21 and 22, 2001, in New York,
New York.
On February 28, 2001, the above complaint issued based
upon a charge filed by Local 169, Union of Needletrades, In-
dustrial and Textile Employees, AFL–CIO (Union), against
Cibao Meat Products, Inc. (Respondent), alleging violations of
Section 8(a)(1) and (3) of the Act.
Based upon the entire record herein, my observation of the
demeanor of witnesses, and briefs submitted by counsel for the
General Counsel and counsel for Respondent, I make the fol-
lowing finding of facts and conclusions of law.
Respondent is a corporation with an office and place of busi-
ness in the Bronx, New York, where it is engaged in the proc-
essing and nonretail sale of meat products. During the course
of such business Respondent annually sells and ships from its
Bronx facility products valued in excess of $50,000 directly to
points outside the State of New York. Respondent also pur-
chases and receives at its Bronx facility goods and products
valued in excess of $50,000 directly from points outside the
State of New York.

CIBAO MEAT PRODUCTS 937
It is admitted, and I find Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
It is also admitted, and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
Respondent employs approximately 30 production employ-
ees, and several security employees at its Bronx facility. Re-
spondents owners and officers are Heinz Vieluf and Lutzi Vie-
luf-Isidor. Its quality control manager is Elizabeth Sandner. It
is admitted, and I find that the above individuals are supervisors
within the meaning of the Act.
On the morning of January 17, production employees Mario
Mendez, Jose Luis Mendez, Modesto Flores, and Cayetano
Flores arrived to work together at approximately 5:50 a.m.
When they arrived, the gate to Respondents entrance was still
locked. As usual, they remained in their car and waited for a
member of management or a security employee to open the
gate. Shortly thereafter, Lutzi Vieluf-Isidor, arrived and
unlocked the gate. After unlocking the gate, Lutzi stood and
briefly waited for someone to assist her in lifting the gate.
Usually, a security guard would assist the member of manage-
ment in opening the gate. However, on this particular morning,
the security guard did not arrive to assist L. Vieluf-Isidor, so
another employee voluntarily lifted the gate.
After the gate was opened, the employees entered the plant
and changed clothes in order to begin the workday. As the
employees entered the work area, Elizabeth Sandner, abruptly
announced that all of the employees gather for a meeting. Ap-
proximately 25 to 30 employees assembled in the production
area for the meeting. Sandner stated that Lutzi was very upset
that no employee immediately assisted her in opening the gate
that morning. She then stated a new policy would be imple-
mented immediately. Employees would be responsible for
opening the gate. Previously employees were not required to
open the gate. If an employee did not voluntarily comply, he
would be suspended for 1 day.
At this meeting, after being informed of this new mandatory
policy, employee Mario Mendez spoke up and stated that it was
not his job to open the gate; rather, it was security’s
responsibility to open the gate. Mendez then stated to Sandner
that “we are the workers, the employees, after you open the
factory.” Mendez testified that after he made this statement, he
noticed some of the other employees nodding agreement with
him. Directly after this meeting and announcing the new
policy, Sandner spoke with Lutzi and informed her that Mendez
did not want to open the gate and abide by the new policy. At
that moment, Lutzi announced over Respondent’s intercom
system, that Mario Mendez was suspended for 1 day. Upon
hearing that he was suspended for 1 day, Mendez returned to
the locker room and went home as ordered.
While Mendez was changing his clothes to go home, the em-
ployees who had been assembled for the meeting with Sandner,
including Jose Luis Mendez, Cayetano Flores, and Modesto
Flores, spoke among themselves and decided to speak to Lutzi
on behalf of Mario Mendez. When the group of about 30 em-
ployees approached Lutzi, she was extremely upset, she asked
them if they did not want to work. She insisted that if the em-
ployees did not want to work, then she would close the factory
down. Cayetano Flores then stated that he definitely wanted to
work, but he also wanted Mario Mendez to keep his job. Then
Raphael Daleano, a security guard, reiterated to Lutzi that,
traditionally, opening the gate was the responsibility of secu-
rity. Lutzi then told the employees that Mario Mendez could
return to work tomorrow, but he was still suspended because
“her word had to count for something.” After the employees
meeting with Lutzi she had a private meeting with Mario
Mendez. In her direct testimony, Lutzi admits explaining to
him that the reason he was suspended was because he protested
the new policy in front of the other employees. She further
stated, on cross- examination, that if Marion had spoke with her
privately about his concerns with her new policy, she would not
have suspended him.
Later that afternoon, the bulk of the employees gathered to-
gether in the employee break area to discuss the Mario Mendez
suspension and how to better represent themselves with man-
agement. Cayetano Flores, accompanied by Jose Luis Mendez
and Modesto Flores, initiated the meeting and suggested that
when addressing Respondent they should be well prepared and
should take detailed notes of Respondent’s responses and pro-
posals.
Heinz Vieluf testified that he first learned of the incident
with Mario Mendez from Sandner on the afternoon of January
17. That evening he spoke to Lutzi, his sister by phone, who
told him about the gate incident and Mario’s suspension. He
told Lutzi to terminate Cayetano Flores, Modesto Flores, and
Jose Luis Mendez. He did not give her his reasons for his deci-
sion.
On January 18, after the employees reported to work, Jose
Luis Mendez, Modesto Flores, and Cayetano Flores were sum-
moned into Lutzi’s office and were told that they were termi-
nated. When they asked the reason for their termination Lutzi
told them she didn’t know. Lutzi told them she knew they were
“serious and responsible people” Cayetano Flores asked for a
dismissal letter and Lutzi told them to return later that day and
pick up their dismissal letters.
Later that day the above employees picked up their dismissal
letters and a letter addressed to Mario Mendez. The letters to
Cayetano Flores, Jose Luis Mendez, and Modesto Flores stated
they were temporarily laid off because of lack of work. Mario
Mendez’ letter stated he was suspended for 1 day.
The above four employees were longtime employees with a
combined working time of over 20 years. These employees
credibly testified without contradiction that there had never
been any layoffs as long as they were employed.
Heinz Vieluf testified that he discharged Jose Luis Mendez
because he suspected he may have been responsible for im-
properly mixing a batch of meat in July 1999. He admitted he
had no evidence to support this allegation. He admits that other
employees engaged in similar conduct but were not discharged.
He also admitted that he discharged Mendez because he might
have retaliated against Respondent because of his brothers sus-
pension. Heinz testified he discharged Modesto and Cayetano
Flores because they were the brothers-in-law of Jose Luis
Mendez and Mario Mendez because he feared “they might take
some action” because of the discharge of Jose Luis Mendez.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 938
Heinz also testified he discharged Modesto Flores because of
an incident that allegedly occurred on Friday, January 14. He
testified that before he left on a business trip that morning, he
observed a commotion in the packing area of the plant. When
he investigated the disturbance, an employee, Andres Martinez,
a/k/a Ramon Guayabo, was wielding a knife at a group of em-
ployees, and that he assumed the incident involved Modesto
Flores and decided that evening that he would terminate Flores
when he returned on the following Monday. However, he did
not inform anyone of his decision until Monday evening after
learning about the gate incident from both Ms. Sandner and
Lutzi. Though Modesto Flores was terminated for allegedly
having some sort of altercation with Martinez, Heinz admitted
that Marinez was not subject to any disciplinary action, not-
withstanding the fact that Martinez had wielded a knife at em-
ployees on at least three occasions and management was aware
of those incidents.
Employees Andres Pullinario testified that sometime after
the above discharges Heinz held a meeting of employees. At
this meeting Pullinario testified he was “nervous” about the
working environment at Respondent since the termination of
the three men. He asked Heinz why the men had been termi-
nated. Heinz responded that Jose Luis Mendez “was an agitator
within the company;” therefore, he was dismissed. He then
went on to explain that because Cayetano Flores and Modesto
Flores were related to Jose Luis Mendez, then they may all
have the same ideas; therefore, he discharged these men as
well.
Shortly after the discharges described above these employees
contacted representatives from the Union. Jose Luis Mendez
held two organizational meetings at his home at the end of
January and the beginning of February. By the end of the sec-
ond meeting, the Union collected the requisite amount of au-
thorization cards and filed a petition for election with the Na-
tional Labor Relations Board on February 17. Subsequently, an
election for representation was conducted and the Union was
certified as the collective-bargaining representative on July 14,
2000.
Analysis and Conclusion
In determining whether an employer discriminates against an
employee because of his membership in or activity on behalf of
a labor organization, General Counsel has the burden of prov-
ing that the employees’ membership in, or activities on behalf
of such labor organization was a motivating factor in the dis-
crimination alleged. Once such factor is established, the burden
then shifts to the employer to establish that such action would
have taken place in the absence of the employees’ membership
in, or activities on behalf of such labor organization. NLRB v.
Transportation Management Corp., 462 U.S. 393 (1982);
Wright Line, 251 NLRB 1080 (1980), enfd. 662 F.2d 899 (1st
Cir.), cert. denied 455 U.S. 989 (1982).
In the instant case, it is admitted by Lutzi that the sole reason
for her suspension of Mario Mandez was his speaking out at the
meeting to protest Respondent’s new policy of requiring the
production employees to open the plant gate in the morning.
The issue presented is whether such conduct constitutes pro-
tected concerted activities.
In Whittaker Corp., 289 NLRB 933 (1988), the Board in re-
versing the administrative law judge stated:

Specifically in Meyers I, 268 NLRB at 494, and again in
Meyers II, 281 NLRB 882, we reaffirmed Root-Carlin, Inc.,
92 NLRB 1313, 1314 (1951), and other cases holding that
“the guarantees of Section 7 of the Act extend to concerted
activity which in its inception involves only a speaker and a
listener, for such activity is an indispensable preliminary step
to employee self-organization.” Thus, the “activity of a single
employee in enlisting the support of his fellow employees for
their mutual aid and protection is as much ‘concerted activity’
as is ordinary group activity.” Owens-Corning Fiberglas
Corp. v. NLRB, 407 F.2d 1357, 1365 (4th Cir. 1969). Such
individual action is concerted as long as it is “engaged in with
the object of initiating or inducing . . . group action . . . .”
Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685
(3d Cir. 1964).

The Board went on to state:

“Particularly in a group-meeting context, a concerted objec-
tive may be inferred from the circumstances.”

The evidence in this case establishes that Mario Mendez was
protesting Respondent’s new policy on behalf of all employees.
Thus Mendez told Sandner at the meeting when Respondent’s
new policy was first announced “we are the workers, the em-
ployees, after you open the factory.” See Whittaker, supra at
934.
Moreover, in Avery Leasing, Inc., 315 NLRB 576 (1994), the
Board held that “where an employee, in the presence of other
employees, complains to management concerning wages,
hours, or other terms and conditions of employment, such com-
plaints constitute protected concerted activity, even though the
employees purport to speak on behalf of himself.
In any event, within hours following the Mendez suspension,
the employees met with Lutzi wherein Cayetano Flores then
calmly stated that he definitely wanted to work, but he also
wanted Mario Mendez to keep his job, and Raphael Daleano, a
security guard, reiterated to Lutzi that, traditionally, opening
the gate was the responsibility of security.
Thus, I conclude Mario Mendez was engaged in protected
concerted activity, and that he was admittedly suspended for
such activity. It is clear that General Counsel has established
its Wright Line burden.
Respondent simply contends that such activity was not pro-
tected, and that if it were, Respondent had no knowledge of the
concerted nature of such protected activity. For the reasons
discussed above, I reject Respondent’s contentions and con-
clude that Mario Mendez was suspended in violation of Section
8(a)(1).
In most situations, an employee who voluntarily quits cannot
contend that the separation was a discriminatory discharge in
violation of Section 8(a)(3). In many cases, however, the
Board and the courts have deemed that employees whose ter-
minations appeared voluntary had been “constructively dis-
charged.” In the Crystal Princeton case, the Board defined
“constructive discharge” as follows:

CIBAO MEAT PRODUCTS 939
There are two elements which must be proven to establish a
constructive discharge. First, the burden imposed upon the
employee must, cause, and be intended to cause, a change in
his working conditions so difficult or unpleasant as to force
him to resign. Second, it must be shown that those burdens
were imposed because of the employee’s union activities.

In the instant case all discriminatees are longtime employees,
and interrelated. Mario Mendez and Jose Luis Mendez are
brothers. Modesto Flores and Cayetano Flores are also broth-
ers. Additionally, the Mendez brothers and the Flores brothers
are brothers-in-law to the Mendez brothers. The four alleged
discriminatees are a family unit. Indeed, the primary reason for
the discharge of Jose Luis Mendez and the Flores brothers was
Heinz Vieluf’s belief that they might protest Mario Mendez’
suspension in a manner that would affect their work.
The credible testimony of Pullinario, described below, who
was still employed by Respondent at the time he testified estab-
lishes that Jose Luis Mendez, Modesto Flores, and Cayetano
Flores were discharged because of their close and familial rela-
tionship.1 I conclude to require Mario Mendez to return to
work after Respondent has unlawfully discharged his brother,
and two brothers-in-law satisfies the requirements for a finding
of a constructive discharge. Accordingly, I conclude that Mario
Mendez was constructively discharged in violation of Section
8(a)(1) of the Act.
Pullinario also testified that he was “nervous” because he did
not understand why the three men were terminated. Therefore,
he decided to ask Heinz Vieluf directly why the discharges
occurred. Heinz responded by stating that Jose Luis Mendez
“was an agitator within the company”; therefore, he must be
terminated. He further stated that because Cayetano Flores is
the brother-in-law of Jose Luis Mendez, then he quite possibly
could have the same ideas he had to be terminated, and finally,
that because Modesto Flores is the brother of Cayetano Flores,
he may have the same ideas as well. It is clear that Heinz be-
lieved that a family relationship was a sufficient basis to as-
sume they would act concertedly, and they were discharged for
such reasons.
Heinz Vieluf did not deny such conversations. Moreover, in
view of his contradictions and other statements discussed be-
low, I conclude Heinz is not a credible witness and credit only
his admissions against Respondent’s interest. Moreover, the
timing of the discharges, 1 day after Mario Mendez’ suspen-
sion, confirm that the discharges were solely motivated by the
employees familial relationship with Mario Mendez.
In Thorogen Toll & Molding, Inc., 312 NLRB 628 (1993), an
employee was discharged because of his wife and mother-in-
law’s union activity. The Board found a violation of Section
8(a)(1) and (3) of the Act, because the employer associated the
employee with the wife and mother-in-law and discharged the
employee based on this relationship. Here, it is clear that J.
Vieluf associated the men with one another.

1 In determining the credibility of a witness, the Board considers the
fact that testifying may pose a risk to the witness. In Shop-Rite Super-
market, Inc., 231 NLRB 72 (1977), the Board noted that if testimony is
given at considerable risk of economic reprisal, including loss of em-
ployment, then the testimony is not likely to be false.
It is clear that General Counsel has established it Wright Line
burden with an exceptionally strong prima facie case.
As set forth above, each of the three alleged discriminatees
was given a letter stating that they were being laid off.
Such letter was issued pursuant to the direction of Heinz
Vieluf. However, during Heinz’ testimony he testified that in
fact the employees were discharged, rather than being laid off.
When attempting to explain why each man was given such a
letter that could potentially be sent to the State of New York for
unemployment benefits, he stated he was not concerned about
what the letter stated, because “depending on the circumstances
that arise,” he had a practice of changing his mind as to why an
individual is terminated.
Thus based upon the contradictions as to layoff v. discharge
and his explanation, it is clear that he is not a credible witness,
and his testimony can be credited only when it is an admission
against Respondent’s interest.
Heinz Vieluf initially testified that he discharged Jose Luis
Mendez in January, because he thought he may have improp-
erly mixed a batch of meat in July 1999. On cross-
examination, Heinz testified that he had absolutely no proof to
support his suspicion. Moreover, Mendez was never disci-
plined in any way for this alleged mistake. He then contra-
dicted this testimony by testifying that based on Mario Mendez’
1-day suspension and the relationship between the Mendez
brothers, he thought Jose Luis Mendez might “do something to
the product.”
In view of Heinz Vieluf’s contradictions concerning the rea-
sons for discharge and his admissions that he fabricated reasons
for discharge depending on the circumstances, I do not credit
his testimony that Mendez was discharged because of his belief
that Mendez spoiled a batch of meat in July 1999.
Additionally I find such contention incredible in view of the
6-month delay between the alleged meat incident and the dis-
charge, the total absence of any reason why he would suspect
Mendez of spoiling the meat, and his admission that other em-
ployees spoiled similar batches of meat they were not dis-
charged. There I find Respondent has not met its Wright Line
burden with respect to Jose Luis Mendez.
With respect to the discharge of Cayetano Flores, Heinz Vie-
luf testified that he terminated Flores because he thought Flores
might do “the same thing that I was thinking Jose might do
because they used to work together.” On cross-examination,
Vieluf modified his original testimony as to why he discharged
Cayetano Flores. He testified that he was also worried that
Cayetano Flores “might react differently” because his brother,
Modesto Flores, was terminated. He further testified that he
was also concerned because “Mr. Jose Luis Mendez and Mr.
Cayetano had a family relationship.” No testimony was intro-
duced as to why he formulated such belief. In view of my un-
favorable impression of Heinz Vieluf’s credibility I find his
reasons for discharging Cayetano unbelievable. Accordingly, I
find Respondent has not met is Wright Line burden.
With respect to Modesto Flores, Heinz Vieluf testified that
he terminated Flores because of an incident he had with Andres
Martinez, a/k/a Ramon Guayabo, an employee at Cibao. He
testified that an altercation occurred in late summer or early fall
1999 when Martinez pulled a knife on Modesto Flores. Flores

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 940
credibly testified that no one from management, including
Heinz Vieluf, spoke to him privately about any incident involv-
ing Mr. Martinez. Flores does recall that approximately 3
months before the incident with Martinez, Lutzi and Sandner
assembled the employees for a meeting where Martinez was
discussed. Lutzi, at this meeting told the employees not to joke
with Mr. Martinez because he was “slow.”2 Modesto told Lutzi
that the employees did joke with Martinez occasionally, but
Martinez would “come after us even when we weren’t joking
with him.” Lutzi did not respond.
Heinz Vieluf thereafter testified contradicting his initial tes-
timony that he discharged Modesto Flores because of an inci-
dent between Martinez and Modesto that allegedly occurred on
January 14, 2001. He testified that on the morning of January
14, before left for a business trip, he noticed a commotion in
the packing area. When he investigated, he observed Martinez
wielding a knife at multiple employees. He then testified that
he assumed the incident involved Flores, though at the time, he
had no proof substantiating this claim. He then testified that he
verified his assumption, but failed to state with whom he veri-
fied his assumption, when he verified his assumption, or how
he verified his assumption. Further, Vieluf provided no cor-
roborating testimony or documents to support his assertion that
there was an altercation involving Martinez, and Flores.
Based upon my impressions of Heinz Vieluf’s credibility,
discussed above, his contradictory reasons for the discharge of
Modesto Flores, his total lack of evidence to support any alter-
cation between Martinez and Flores, I conclude Vieluf’s rea-
son’s for Flores’ discharge are untrue.
However, assuming the alleged incident occurred between
Flores and Marinez on January 14, 2001, the discipline imposed
does not comport with Respondent’s normal practice. Vieluf
admits to having knowledge that Martinez pulled a knife on
various employees on at least three occasions, but did not rep-
rimand him for any of these incidents. He also admits that
when an incident between two employees occurs, both receive
the identical reprimand or discipline. Martinez was never dis-
ciplined for such alleged incident.

2 Four witnesses, including Vieluf and Vieluf-Isidor, testified that
Martinez is a mentally slow, problematic individual, who “retaliates”
by wielding a knife if he perceives harassment from other employees.
Accordingly, I conclude Respondent has failed to meet its
Wright Line burden.
The facts establish that after the discharge of Jose Luis
Mendez, Modesto Flores, and Cayetano Flores, Jose Luis
Mendez contacted the Union. Union organization began the
last week in January. A petition for an election was filed. An
election was held on March 30 which the Union won. The
Union was thereafter certified to represent Respondent produc-
tion and maintenance employees.
General Counsel contends Respondent’s refusal to reinstate
the discharged employees was a violation of Section 8(a)(3) of
the Act.
There is no evidence that Respondent took any action to dis-
courage the employees right to organize. The discharges oc-
curred prior to any union activity. Since the remedy for an
8(a)(1) discharge is the same effective remedy as to the em-
ployees, I reject General Counsel’s contentions.
REMEDY
Having found Respondent has engaged in violations of Sec-
tion 8(a)(1) and (3) of the Act, I shall recommend it cease and
desist therefrom and take certain affirmative action to effectu-
ate the policies of the Act.
Having found that Respondent unlawfully laid off or dis-
charged the employees whose names are set forth below, I shall
recommend that the Respondent offer them immediate and full
reinstatement to their former jobs or, a substantially equivalent
position without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings they
may have suffered by reason of the discrimination against
them. All backpay provided shall be computed with interest on
a quarterly basis in the manner prescribed by the Board in F. W.
Woolworth Co., 90 NLRB 289 (1950), and with interest com-
puted in the manner and amount prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).

Mario Mendez Cayetano Flores
Jose Luis Mendez Modesto Flores

[Recommended Order omitted from publication.]