Grimmway Farms

National Labor Relations Board - Board Decisions

Jan 12, 1995

315 N.L.R.B. 1276 (N.L.R.B. 1995)

1276
315 NLRB No. 162
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In excepting to the finding that it discharged employee Pedro
Santos for engaging in protected concerted activity, the Respondent
claims, inter alia, that the judge erred in excluding testimony show-
ing that it had a grievance procedure that Santos could have fol-
lowed to present the concerns about fellow employee Ramiro
Hurtado. We disagree. First, we observe that, in fact, the judge per-
mitted the grievance procedure to be introduced into evidence. Fur-
ther, in the circumstances of this case, we find that the Respondent
has failed to show how testimony about the grievance procedure can
have any bearing on the judge’s findings concerning the protected
nature of Santos’ activity.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard 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.
1 The caption has been amended pursuant to a motion made at the
hearing.
Grimmway Enterprises, Inc. d/b/a Grimmway
Farms and d/b/a Grimmway Frozen Foods and
General Teamsters and Food Processors Local
87, International Brotherhood of Teamsters,
AFL–CIO, Fresh Fruit and Vegetable Work-
ers, Local 78–B, UFCW, AFL–CIO, CLC. Case
3l–CA–19946
January 12, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On august 16, 1994, Administrative Law Judge
James M. Kennedy issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the General Counsel 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 has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Grimmway Enterprises,
Inc. d/b/a Grimmway Farms and d/b/a Grimmway Fro-
zen Foods, arvin, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Ann L. Weinman, for the General Counsel.
Jeffrey A. Green, of Di Giorgio, California, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in Bakersfield, California, on February 16–17,
1994. The complaint was issued by the Regional Director for
Region 31 on July 2, 1993. It is based upon a single unfair
labor practice charge filed on May 20, 1993, by two labor
unions, General Teamsters and Food Processors Local 87,
International Brotherhood of Teamsters, AFL–CIO; Fresh
Fruit and Vegetable Workers, Local 78–B, UFCW, AFL–
CIO, CLC. The complaint1 alleges that Grimmway Enter-
prises, Inc., d/b/a Grimmway Farms and d/b/a Grimmway
Frozen Foods (the Respondent) has committed certain viola-
tions of Section 8(a)(1) of the National Labor Relations Act
(the Act).
Issues
The principal issue to be decided is whether Respondent
on March 19, 1993, suspended its employee Pedro Santos
and thereafter discharged him on March 21 in violation of
Section 8(a)(1) because he had engaged in protected con-
certed activity or whether Respondent discharged him be-
cause he was insubordinate.
The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Both the Gen-
eral Counsel and Respondent have filed briefs which have
been carefully considered. Based upon the entire record of
the case as well as my observation of the witnesses and their
demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California corporation, operates a produce
processing plant at its facility in Arvin, California. It admits
that it meets the Board’s nonretail standard for the assertion
of jurisdiction and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent is a relatively large produce processor. At its
arvin plant it processes both fresh and frozen vegetables, in-
cluding baby carrots, green beans, and peppers. It operates
52 weeks a year on a 5- and 6-day-per-week basis. It em-
ploys about 350 hourly employees on at least a two-shift
schedule. In mid-March 1993 it had about 100–120 produc-
tion persons on its night shift which operated from 6 p.m.
to 2 a.m. The night-shift superintendent at that time was
Manuel Singh. His assistant was Dagoberto (Beto) Pardo.
Singh, like the day superintendent, reports to Max Meldrum,
Respondent’s vice president for operations.
It was Singh’s practice on Fridays to call a midshift all-
employee meeting in the cafeteria shortly after the 10:30
p.m. ‘‘dinner hour.’’ The meeting is referred to variously as
1277GRIMMWAY FARMS
2 Many of the witnesses testified in Spanish through a court cer-
tified interpreter. The translations which are quoted may appear awk-
ward in English due to hastiness of the interpreter’s word-for-word
instant conversion from one language to the other.
a safety meeting, a production meeting, an information meet-
ing, or a scheduling meeting.
Pedro Santos was a carrot sorter who in March 1993 had
been employed by Respondent for about 9 months. He testi-
fied that at the March 12 meeting an employee named
Ramiro Hurtado stood up and asked Singh that he be sent
to see a doctor. Santos believed, based on earlier conversa-
tions he had had with Hurtado, that Hurtado had suffered an
accident some time before. That night Hurtado complained of
some pain in his arm. Santos says Singh told Hurtado that
he would talk to him in Singh’s office. Similarly, forklift
driver Javier Frausto testified that Hurtado had complained at
the meeting that his arm was hurting, asking, ‘‘[P]lease could
he be sent to a doctor because his arm was hurting.’’’
Frausto then testified, ‘‘The gentleman, Manuel Singh, ig-
nored him and said, ‘afterward, you and I will speak in the
office.’ The gentleman sat down, had no other words to
say.’’2 A short time later, Hurtado spoke to Santos at the
production line, saying that Singh had not sent him to the
doctor but had scolded him. Santos observed Hurtado was
shaking. Hurtado told Santos that Singh had scolded him
several other times.
Hurtado died within an hour of the end of his shift at 2
a.m. News of his death spread through the plant beginning
Monday, March 15, after one of Hurtado’s relatives came to
the plant and reported he had died at 3 a.m. on Saturday.
Santos and Frausto both testified that after they learned of
Hurtado’s death, a group of employees discussed the situa-
tion. They decided to ask Singh at the next Friday meeting
why he hadn’t sent Hurtado to a doctor. Santos agreed to be
their spokesman.
Singh testified that Santos came to him on Wednesday to
speak about Hurtado. Santos denies that such a meeting oc-
curred. As will be seen, I credit Santos’ denial that he met
with Singh on Wednesday about Hurtado or anything else.
On Friday, March 19, Singh conducted a regular meeting
shortly after the 10:30 p.m. break. At the end of the meeting
he asked for questions. There is a dispute about what hap-
pened next. Santos testified:
A. I stood up. I asked permission to speak to Mr.
Manuel Singh. I asked why didn’t he send to the doctor
Mr. Ramiro Hurtado.
Q. What did Mr. Singh say?
A. ‘‘Hey, hey, are you trying to say that I killed
him?’’
. . . .
A. ‘‘No. I want to tell you that if you would have
sent him to the doctor perhaps the doctors would have
attended to the gentleman. Perhaps he would have not
died.’’
Q. Then what did Mr. Singh say?
A. The meeting ended. ‘‘and you, screw your moth-
ers, and you go to the office.’’
Frausto’s testimony is similar:
Q. (By Ms. Weinman) Did Mr. Santos speak at the
next safety meeting?
A. Yes.
Q. What did he say?
A. That we wanted to know that if Mr. Manuel Singh
had taken the gentleman into account or would have
sent him to the doctor as the gentleman had wanted,
perhaps he would not have died like that. Nonetheless,
we were not accusing him, we were just saying why
had he not paid attention.
Q. What did Manuel Singh say?
A. To Mr. Santos he told him if he was accusing
him of death. Mr. Pedro Santos said, ‘‘No, but I and
all of my co-workers want to know why you ignored
him.’’ Manuel Singh did not respond to anything.
Q. Did Mr. Singh say anything after that?
A.Yes.
Q. What did he say?
A. He became angry and left quite angry and he
said, ‘‘The meeting has ended,’’ and he left, and before
leaving he said, ‘‘Mother fucker.’’
Q. To who?
A. To all of us. We were all there. [Emphasis
added.]
Singh’s testimony is different. He first testified that at the
March 12 meeting, Hurtado only asked to see him about a
problem he was having with the personnel office authorizing
him to see a medical specialist. He said he asked Hurtado
to meet with him after the meeting in the production office
and that Hurtado did so. He says the meeting was short and
Hurtado told him he intended to bring some paperwork with
him on Monday or Tuesday and that Singh agreed to wait
until then to pursue the issue. Even so, Singh acknowledges
that he asked Hurtado, ‘‘[D]oes he feel okay, is he okay, is
he feeling any pain, if something happened, and he said,
‘No.’. . . At that time I said, ‘Well, do you feel okay or is
there anything I can do, something medical-wise.’ And he
said, ‘No, I’d just like to bring you those documentations on
Monday or Tuesday.’’’ It is apparent that something about
Hurtado’s demeanor caused Singh to make an inquiry about
Hurtado’s health at that moment.
With respect to the March 19 meeting, Singh, supported
by some assistants, testified that Santos simply became dis-
ruptive at the end of the meeting and continually accused Re-
spondent of being dishonest in its treatment of Hurtado and
in other matters. He testified:
Q. (By Mr. Green) Were you also asked about Mr.
Hurtado?
A. Yes, I was.
Q. And how did you—what was the question with
regard to Mr. Hurtado?
A. He says—the question was how come I didn’t
send him to the doctor the week before that, and I did
not really want to get into it, because it was a personal
matter.
Q. And how did you respond to that question?
A. I said if there’s any more questions, my door is
always open to my office and we—that’s basically how
I respond to all the questions that are personal. On Fri-
days I give the opportunity to the employees to come
to my office if they want to talk. Like I would say, the
door is always open and if they have something to say
1278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Santos denies speaking in anything other than a calm manner.
or talk about, a comment, question, a dislike, or some-
thing, they—some employees do go after.
Q. With regard to the—specifically the Question
with regard to Ramiro Hurtado . . . do you recall how
you responded to that question?
A. I would really—I wouldn’t—I’d say, like I said,
any personal questions, sir, it’s a personal question. If
there’s any more information needed, they can come up
to my office.
. . . .
Q. W]hat happened next in the meeting?
A. I started to say to the employees, if we—if you
all too feel that if we have talked about these questions
in a group form or on a one-on-one basis, I got to the
word ‘‘honestly’’ and that’s when the meeting got dis-
rupted by Pedro Santos.
Q. and can you describe what you mean when you
say it was ‘‘disrupted’’?
A. Pedro Santos stood up, started talking, looking
around at the employees. I really don’t know what he
was saying. He just—I couldn’t get —I couldn’t get a
word edgewise in.
Q. Did Mr. Santos at that time specifically ask you
any questions?
A. Specifically, no; when he got up, no.
Q. Was Mr. Santos speaking in a calm voice or was
it a high-pitched high voice?
A. It was—it was—it was higher than mine. It was
up in a high voice.
Q. And when you say ‘‘high,’’ in terms in loudness?
A. Yes.3
Q. Was Mr. Santos doing anything with his body
while he was speaking?
A. Yes. He was turning around. He had his arms up,
just looking around, talking not to me, he was talking
to the employees.
Q. Were any other employees able to ask questions?
A. No.
Q. What did you do?
A. At that time I noticed that the meeting was not
productive. I tried to calm Mr. Santos down. He
wouldn’t listen. I then told the employees, ‘‘Okay.
Let’s go back to work.’’ I made a gesture with my
arms, crossed my arms, ‘‘Okay. The meeting’s over.
Let’s go back to work.’’
Q. How long can you estimate that—did Mr. Santos
disrupt the meeting before you ended the meeting?
A. I would a say a minute and a half, two minutes;
somewhere in that area.
Q. And could you display the motion of your arms
again as you gestured that evening.
A. Going like this, crossed my arms this way. (Indi-
cating.)
MR. GREEN: If I can for the record, he had both his
arms up and he crossed them in front of him and then
uncrossed his arms.
JUDGE KENNEDY: In a standard stop motion.
MR. GREEN: A standard stop motion.
Q. BY MR. GREEN: Do you recall during the meeting
that Mr. Santos said that if you had sent Mr. Hurtado
to the doctor that he may have been alive at that time?
A. No.
Q. Do you ever recall saying, ‘‘Hey, hey, are you
trying to say I killed him’’?
A. No.
Q. At the end of the meeting did you say verbally
the Spanish phrase, ‘‘Chinguen sus madres’’?
A. No.
Q. And what do you understand that phrase to mean?
A. It’s like, excuse—excuse me, ‘‘Mother fucker.’’
Q. And in gestures, did you intend to convey that
same sentiment?
A. No.
Q. After you crossed your arms and announced that
the meeting was over, what did you do?
A. I walked out of the cafeteria Beto Pardo was right
behind me and I asked Beto Pardo to bring Pedro
Santos to the office.
Q. Was that to your office or the production office?
A. To my office.
Q. And why did you want Mr. Santos? To do what
your office?
A. To come and talk to him about his question that
was brought up and also I wanted on—speak to him on
if there was a problem or something I can help him
with. [Italics supplied.]
At this point there is some additional discrepancy in the
recollections. Both Santos and Frausto recall that leadman
Alejandro Padilla caught the employees in the cafeteria as
they were making their way toward the stairs. They recall
Padilla, who was using a walkie-talkie to speak to Singh,
asking Santos to go to the office to speak to Singh. Singh
denies using the radio that night, but a written record which
he made shortly after the incident refers to his using the
walkie-talkie.
Nonetheless, Santos testified that the coworkers who were
with him stepped in, saying that Santos would not go alone
to the office for they were fearful for his safety, given the
anger which Singh had just exhibited. The testimony varies
but Padilla reported that between five and eight employees
wanted to come with him. Singh and Pardo do not disagree.
Santos says that he, himself, said nothing while this was
going on, but when Padilla reported that a group wanted to
accompany Santos to the office he heard Singh say to
Padilla, ‘‘By himself or nothing.’’
Santos interpreted that remark as meaning that he was not
being ordered to go to the office, so he declined and went
on to his work station. His interpretation is actually sup-
ported by the testimony of Ignacio (Nacho) Rivera, a
leadman called by Respondent. Rivera recalls a conversation
at the Santos’ work station between Pardo and Santos which
took place a little later. During that discussion Rivera reports
that Pardo told Santos he ‘‘could’’ go to the office to speak
to Singh, language which also suggests that Santos was being
given the option of going or not.
As reports came to Singh that Santos was not coming to
the office, he determined that Santos was being insubordi-
nate. In addition, Pardo advised that Santos had in effect told
him (and perhaps others) that they should mind their own
1279GRIMMWAY FARMS
4 Also, Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3d
Cir. 1964), and numerous other cases.
5 Sec. 7 of the Act states:
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to
refrain from any or all such activities except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as au-
thorized in section 8(a)(3). [Emphasis added.]
business or they would ‘‘regret it.’’ Santos denies making
any such statement, but Singh and the others interpreted this
alleged remark to be a threat. Deciding that they had given
Santos clear instructions which he was defying, Singh de-
cided to suspend him for 3 days if he did not come to the
office. Pardo then went to the line and spoke to Santos.
Santos says Pardo simply told him he had been suspended
for 3 days and that he would have to leave the premises.
Santos said he would not leave until he had been given
something in writing confirming such a suspension. This re-
sulted in a standoff which took about half an hour to resolve.
Singh called the police when Santos would not leave. Even-
tually, after discussing it with the police, Singh issued Santos
a written notice of suspension and Santos left.
Singh later filed a report with Meldrum and on March 22
they decided to discharge Santos upon his return after the
suspension. He was discharged for ‘‘insubordination’’ the
next day per the decision. No other explanation was given.
III. ANALYSIS AND CONCLUSIONS
I have not attempted to describe all of the testimonial
variances and inconsistencies found in this record. Suffice it
to say that all of the witnesses, except Santos, are vulnerable
to a charge that their testimony is internally inconsistent or
that their memory does not comport with whatever objective
facts may be found. That does not mean, however, that their
testimony on salient points is automatically rejected. I have
above placed some testimony in italics for the purpose of
highlighting it, principally to demonstrate that the elements
of a prima facie case are in place here. That testimony comes
in part from Singh himself whose own testimony can in part
be seen to corroborate Santos and Frausto. Many of the testi-
monial frailties which can be pointed out are irrelevant to the
main issue to be decided, whether or not Respondent, prin-
cipally through Singh, was motivated to first suspend and
later discharge Santos because he had, or was perceived as
about to have, engaged in an activity protected by Section
7 of the Act.
Indeed, the issue of motive is largely one to be found in
the testimony of the principal decision maker, Singh. It is
certainly not found in Santos or Frausto. Nor is it found in
Singh’s assistants. It must begin, however, with the facts as
they arose and end with the manner in which Singh per-
ceived them and reacted.
Before analyzing the evidence of Singh’s motive, it is ap-
propriate to first look at the law of protected concerted activ-
ity. The Supreme Court, in NLRB v. Washington Aluminum
Co., 370 U.S. 9 (1962), set forth the initial standards.4 In that
case a group of employees decided that it was too cold to
work in the building housing the machine shop in the which
they were employed; temperatures were well-below freezing,
between 11 degrees and 22 degrees. The employees dis-
cussed the situation among themselves and decided to leave
in order to force corrective action. The Board and the Court
held that the mutual aid and protection clause of Section 7
of the Act (the italicized portion of the statute in the foot-
note) protected their conduct and that the employer’s dis-
charge of the employees was unlawful under Section
8(a)(1).5
In Meyers Industries, 281 NLRB 882 (1986) (Meyers II),
affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir.
1987), the Board refined the nature of concerted activity to
differentiate between individual activities and group activi-
ties. There, the question before it was whether a single truck-
driver’s refusal to drive an unsafe vehicle was a concerted
act within the meaning of Section 7. The Board held that it
was not, at least where he was not invoking a collectively-
bargained right. The Board contrasted the facts with the Su-
preme Court’s decision in NLRB v. City Disposal Systems,
465 U.S. 822 (1984), where an employee had invoked a con-
tract right.
There is, of course, no question that raising questions of
common concern at meetings with company officials is usu-
ally a concerted act, particularly when the first person plural
is used by the employee. See Colders Furniture, 292 NLRB
941 (1989), enfd. 907 F.2d 765 (7th Cir. 1990). That is true
even where the employee has not actually been appointed the
group spokesman. The Board will usually regard that step as
an essential preliminary to the inducement of group action.
See Whittaker Corp., 289 NLRB 933 (1988). Whittaker, like
Colders Furniture, is also a first person plural case where the
employee spoke up at a company meeting. See also Autumn
Manor, 268 NLRB 239, 244 (1983). Those cases protect
what might otherwise be regarded as ambiguous conduct by
the employee.
Here the testimony is both clear and uncontradicted. After
learning of Hurtado’s death shortly after he requested medi-
cal assistance, a group of employees decided they needed to
know more about the circumstances so they could determine
whether they needed to take steps to prevent a similar hap-
penstance. They appointed Santos to take the initial step of
asking Singh for more information about what Singh had
done after Hurtado asked for assistance. Standing by itself,
that is concerted activity. Furthermore, Singh knew well be-
fore suspending Santos that more than one person was in-
volved. Frausto’s testimony makes that quite clear. In de-
scribing Santos’ question about Hurtado, Frausto says Santos
spoke to him in first person plural terms: ‘‘[W]e wanted to
know that if Mr. Manuel Singh had taken the gentleman into
account or would have sent him to the doctor as the gen-
tleman had wanted, perhaps he would not have died like that.
[W]e were just saying why had he not paid attention . . .
Pedro Santos said, ‘No, but I and all of my co-workers want
to know why you ignored him.’’’ This is the first person plu-
ral described in Colders Furniture, supra. Subsequently,
when Singh began to pursue Santos, he received several re-
ports to the effect that Santos would not come to the office
unless he was accompanied by a number of other employees.
1280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 In this regard, I specifically reject Singh’s testimony that Santos
had spoken to Singh about Hurtado a few days earlier. He even says
that he told Santos during the March 19 meeting that he had already
spoken to him about Hurtado earlier that week. First, if I credit that
he said any such thing, it would be additional evidence that he knew
Santos was speaking for a group, thereby undermining his denial of
that fact. Yet on rebuttal Santos denied that any such thing was men-
tioned during the meeting. Furthermore, no other witness was asked
to corroborate Singh here, undoubtedly because they cannot.
7 Santos had seen the ‘‘shaking’’ which Hurtado was suffering
shortly after Hurtado had met with Singh, and was aware that
Hurtado had said he had been ‘‘scolded’’ instead of being handled
sympathetically. Santos and his fellows had good reason to mistrust
Singh.
8 The employees’ request that Singh explain his behavior with re-
spect to Hurtado may also have forced him to expose that he had
done nothing for a dying man, an admission he could not make. I
must say that his explanation to me that Hurtado simply wished to
advise him that he was bringing some papers to him early the next
week seems lame. Yet he would not even say that to the assembled
employees that night. The story is most suspect.
Clearly, he knew Santos was not acting alone—others were
standing with him.
He also understood that those other employees were like-
wise concerned about the Hurtado matter. He said he wanted
Santos to come to the office ‘‘[t]o come and talk to him
about his question that was brought up.’’ Since the only
question which Santos had ever asked during this meeting
was about Hurtado, it is clear Singh recognized that both
Santos and his coworkers were concerned about that inquiry.
At another point in his testimony though it is a bit disorga-
nized, Singh acknowledged that the questions were ‘‘in a
group form.’’
Thus, at the outset, it is clear that the Washington Alu-
minum Co. standards have been met. A group of employees
had decided it was in their best interests to find out how
Singh had handled Hurtado’s request. They appointed Santos
to do that. Without question, that conduct places Santos and
his group in the Washington Aluminum category, not the
Meyers II category. Respondent argues that Singh could not
have known that Santos was acting on behalf of other em-
ployees who had appointed him their speaker. However, the
evidence is to the contrary. Not only does Frausto’s testi-
mony so show, but so does that of Pardo, Padilla, and Ri-
vera. Singh’s purported failure to recognize that fact does not
provide Respondent with a defense, for a reasonable person
would have perceived it properly.
Yet I believe Singh did understand it. His reaction far ex-
ceeds that of simply dealing with a matter of perceived in-
subordination. His claim was that he simply wanted to pur-
sue the ‘‘question’’ with Santos further. If that was all, he
could have waited until another break, after all, the process-
ing line was about to resume running, an important part of
the Company’s production. Instead, even before anyone told
Santos he was suspended, Singh gave directions which pre-
vented the entire production process from restarting, an un-
usual occurrence. That clearly suggests Singh was concerned
about what influence Santos might be having on others. In
my view, Singh knew Santos was raising a matter of com-
mon concern to the entire work force. Since he knew that,
it is hard to credit Respondent’s argument that Singh did not
understand that Santos was not acting alone.
What followed next must be seen as a continuation of Re-
spondent’s decision to pursue Santos for having engaged in
the effrontery of standing up for employees who wished to
learn how Singh had handled Hurtado’s request for a doctor.6
Singh clearly became perturbed. That is apparent whether or
not one accepts the evidence regarding his insulting profanity
or rejects it. He had clearly done something to cause the em-
ployees to mistrust his behavior. He had either insulted them
all, or he had, by his own testimony, been less than candid
with them about the Hurtado matter.7 When he sent Padilla
to Santos, both he and his coworkers recognized that some-
thing was afoot. They intervened with Padilla, who relayed
their request to come with Santos. Instead of agreeing, or
suggesting a time when they could all meet, Singh sent a
message to Santos via Padilla which allowed him to interpret
the message as giving him the option of going to Singh’s of-
fice or not. Then, when Santos exercised the perceived op-
tion to decline, Singh declared Santos’ conduct to be insub-
ordination, ultimately resulting in the suspension.
These facts do not support Respondent’s conclusion that
Santos was behaving insubordinately. Instead, they show
Santos to have attempted to avoid a confrontation, an attempt
which was ultimately unsuccessful. They do not show that
Santos ever disobeyed a direct order to go to Singh’s office.
At worst, all Santos and his fellows did was attempt to nego-
tiate a group meeting (something which Respondent asserts
it has no problem with conducting, but did not allow for
here). That meeting itself was for the purpose of mutual aid
and protection. The employees did not want to send Santos
to an uncertain fate at the hands of an angry supervisor. In-
stead, they obtained the supervisor’s apparent permission for
Santos to decline, a liberty which he exercised, but a license
for which he paid with his job. It is quite clear that good
humor was not a part of Singh’s demeanor that night. His
lack of tolerance was no doubt fed by his perception that the
employees were upset with his handling of the Hurtado mat-
ter and his perception that they were demonstrating some
group strength on that subject. His inability to cut Santos out
of the herd was the final straw. He needed to nip that kind
of solidarity as quickly as it arose, as it threatened his au-
thority.8 For that reason he decided to remove Santos from
the premises. Santos’ supposed insubordination never oc-
curred; insubordination was only Singh’s trumped-up excuse
to suspend and subsequently discharge him. Santos’ refusal
to go to the office is inseparably intertwined with the pro-
tected conduct in any event. See Millcraft Furniture, 282
NLRB 593, 594–596 (1987).
Accordingly, I conclude that the General Counsel has
demonstrated that Respondent, on March 19 suspended
Santos because he had engaged in activity protected by the
mutual aid and protection clause of Section 7 of the Act;
similarly, it discharged Santos on March 23 for the same rea-
son. Furthermore, Respondent’s defense does not in any way
rebut the General Counsel’s evidence. Accordingly, I con-
clude that these acts violated Section 8(a)(1) of the Act.
IV. REMEDY
Having found Respondent to have engaged in certain un-
fair labor practices, I find that it must be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act. As Respondent
has discriminatorily discharged its employee Pedro Santos, it
1281GRIMMWAY FARMS
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
10 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.’’
will be required to offer him immediate reinstatement to his
previous job or, if that job is no longer available to a sub-
stantially equivalent job and make him whole for any loss of
earnings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). In addition it shall be ordered to remove from its
files any reference to its unlawful suspension and discharge
of Santos and notify him in writing that this has been done
and that the suspension and discharge will not be used
against him in any way.
Based on the foregoing findings of fact, I make the fol-
lowing
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent’s employee, Pedro Santos, on March 19,
1993, engaged in concerted activity for the mutual aid and
protection of employees within the meaning of Section 7 of
the Act when, pursuant to an agreement reached with his fel-
low employees, he asked his/their superintendent to explain
the procedures he followed regarding another employee’s re-
quest to be seen by a physician.
3. On March 19, 1993, by suspending its employee, Pedro
Santos, for engaging in activity protected by Section 7 of the
Act, and on March 23, 1993, by discharging Santos for the
same reason, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
Based upon these findings of fact and conclusions of law
and on the entire record, I issue the following recommended9
ORDER
The Respondent, Grimmway Enterprises, Inc. d/b/a
Grimmway Farms and d/b/a Grimmway Frozen Foods,
Arvin, California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Suspending and/or discharging employees because they
have engaged in activities protected by Section 7 of the Act,
specifically acting in concert with fellow employees for their
mutual aid and protection by inquiring about the procedures
which it follows in dealing with employee requests for medi-
cal assistance.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Immediately offer Pedro Santos full reinstatement to
his former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him in the
manner set forth in the remedy section of this decision.
(b) Remove from its files any reference to Santos’ unlaw-
ful suspension and discharge and notify him in writing that
this has been done and that neither the suspension nor the
discharge will be used against him in any way.
(c) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(d) Post at its plant in arvin, California, copies of the at-
tached notice marked ‘‘Appendix’’10 (in both English and
Spanish). Copies of the notice, on forms provided by the Re-
gional Director for Region 31, after being signed by Re-
spondent’s authorized representative, shall be posted by Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that the
notices are not altered, defaced, or covered by any other ma-
terial.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees the right to act together
for their mutual aid or protection.
WE WILL NOT suspend and/or discharge employees be-
cause they have engaged in activities protected by Section 7
of the Act, such as acting in concert with fellow employees
for their mutual aid and protection by inquiring about the
procedures which we follow in dealing with employee re-
quests for medical assistance.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed by Section 7 of the Act.
WE WILL offer Pedro Santos immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination, including inter-
est.
1282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL remove from our files any reference to Santos’
unlawful suspension and discharge and notify him in writing
that this has been done and that neither the suspension nor
the discharge will be used against him in any way.
GRIMMWAY ENTERPRISES, INC. D/B/A
GRIMMWAY FARMS AND D/B/A GRIMMWAY
FROZEN FOODS