Indulac

National Labor Relations Board - Administrative Judge Opinions

Apr 17, 2006

24-CA-010091 (N.L.R.B. Apr. 17, 2006)

JD(ATL)–13–06
Hato Rey, PR

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

INDUSTRIA LECHERA DE PUERTO RICO, INC.
d/b/a INDULAC

and Case No. 24–CA–10091

CONGRESO DE UNIONES INDUSTRIALES
DE PUERTO RICO

Shecyl San Miguel, Esq., for the General Counsel.
Fernando A. Baerga Ibañez, Esq., for the Respondent.

DECISION

Statement of the Case

MICHAEL A. MARCIONESE, Administrative Law Judge. I heard this case in San
Juan, Puerto Rico on December 12 through 14, 2005.1 Congreso de Uniones Industriales de
Puerto Rico (“the Union”) filed the charge in this case on May 5 and amended it on July 21. The
complaint, which issued on August 31 and was amended at the hearing, alleges that the
Respondent, Industria Lechera de Puerto Rico, Inc., d/b/a Indulac, violated Section 8(a)(1) and
(3) of the Act by discharging employee Orlando Soto on April 1 because of Soto’s union and
other protected concerted activities. On September 13, the Respondent filed its answer to the
complaint denying that it committed the unfair labor practices alleged and asserting, as an
affirmative defense, that it discharged Soto for cause and that it would have taken the same
action even in the absence of any union or protected concerted activity. Specifically, the
Respondent asserted that Soto was discharged for engaging in violent misconduct when he
threatened another employee with bodily harm.

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following

Findings of Fact

I. Jurisdiction

The Respondent, a corporation, produces milk and other dairy products for wholesale
distribution at its facility in Hato Rey, Puerto Rico. The Respondent annually purchases and
receives at its Hato Rey facility goods and materials valued in excess of $50,000 directly from
points located outside of Puerto Rico. The Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section 2(5) of the Act.
1 All dates are in 2005 unless otherwise indicated.

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II. Alleged Unfair Labor Practices

B. The Evidence

The Respondent is a wholesale producer of milk, cheese and other dairy products. Jose
Benitez is the Respondent’s president. Nancy Santiago has been the Respondent’s Director of
Human Resources since 1995. The alleged discriminatee, Orlando Soto, was employed by the
Respondent in various positions from December 28, 1991 until his termination on April 1. At the
time of his termination, Soto was a maintenance employee.

On July 3, 2002, the Charging Party Union was certified as the exclusive collective-
bargaining representative of the Respondent’s production and maintenance employees. The
parties have been in negotiations since then but had not reached agreement on a contract as of
the date of the hearing. Prior to this Union’s certification, the Respondent’s employees had been
represented by another Union, Seafarer’s International Union (“SIU”). Soto testified, without
contradiction or corroboration, that he was the one who brought the Union into the
Respondent’s facility because of dissatisfaction with the representation provided by SIU. In
particular, Soto was unhappy with the way the SIU represented him in connection with a
warning he received on September 14, 2001 for allegedly sleeping on the job.2 Soto was the
Union’s observer at the 2002 election and he has been one of three general delegates for the
Union since its certification following that election. He has also been one of seven employees on
the Union’s negotiating committee. According to Soto, he has been the Union’s most active and
dynamic delegate. Soto testified that he met with Nancy Santiago often in his capacity as union
delegate and that these meetings were usually unproductive.

There is no dispute that Soto was involved in an incident with another employee, Hector
Orlandi, on March 19. According to Soto, he heard during the morning break that day that
Orlandi was saying that someone had shut off the refrigeration equipment Orlandi worked on.
Soto viewed Orlandi’s comments as an accusation that employees were engaged in sabotage.
Soto testified that he went to speak to Orlandi in his role as a union delegate to protect the
employees from such accusations. Soto encountered Orlandi by the electrical panel and asked
him if it was true what he heard that Orlandi was saying. When Orlandi confirmed that he had
said these things, Soto asked Orlandi if he had any proof that someone had turned off the
equipment. According to Soto, Orlandi replied that he had no proof but it was true that someone
had turned off the freezer. Soto told Orlandi that his comments could have a negative effect on
the bargaining relationship because the Respondent would use any accusation of sabotage
against the Union.3 Soto testified that Orlandi kept insisting his claims were true even though he
had no proof. Soto also testified that Orlandi was speaking in an aggressive manner, raising his
voice and gesturing with his hands. Soto asked Orlandi to lower his voice, telling Orlandi that he
was only asking a question. Soto testified that once he saw Orlandi’s attitude, he knew he
wasn’t going to get anywhere with Orlandi, so he proceeded to leave.

Soto testified further that, later that morning, he saw Orlandi in the merchandise
2 Soto filed unfair labor practice charges against the Respondent and the SIU over the
warning and the Union’s alleged failure to represent him. Both charges were dismissed by the
Board’s Regional Office in December 2001 due to Soto’s failure to cooperate in the investigation
of his charges.
3 The parties bargaining relationship has been marked by work stoppages and claims of
employee sabotage in the past.

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receiving area where several other employees were working at the time and that Orlandi was
screaming and acting in a furious and rowdy manner. Soto could not understand what Orlandi
was saying. He recalled that supervisor Ramon Lugo arrived during Orlandi’s tirade. According
to Soto, he told Orlandi that he was not going to share anything from the Union’s internal affairs
with the company and that, if Orlandi had any problem, they could discuss it outside, and that he
would not discuss anything with the supervisors. At that point, Adiel Milan, the Respondent’s
Operations Director, arrived and took everybody into the office. Soto asked to have union
representation and was permitted to get fellow delegate Juan Hernandez. Soto went to find
Hernandez and returned with him to Milan’s office. In addition to Milan, Orlandi, Soto and
Hernandez, supervisors Lugo and Gerardo de Jesus, maintenance engineer Mr. Rosario and
employees Alberto Santana and Cruz Perez were in the office. Orlandi had brought Santana
and Perez in as witnesses.

Soto testified that, in this meeting, Orlandi accused Soto of having threatened him. Soto
responded that this was untrue. According to Soto, Santana, one of Orlandi’s witnesses, then
said that he did not understand what Soto said to be a threat. Cruz Perez asked Soto if he had
invited Orlandi to settle things outside and Soto admitted saying this, but explained he meant
that internal union matters should not be discussed inside the company but should be resolved
outside. After hearing all sides, Operations Director Milan told Soto he had to leave the
company. Hernandez, Soto’s union delegate, protested that only Soto was being told to leave
when both men had been involved in the dispute. According to Soto, Milan then sent both him
and Orlandi home. Before leaving the plant, Soto was told that the police had been called and
that he could not leave until they arrived and investigated. Soto told Milan that he too would file
a complaint with the police. Soto did not testify regarding what happened when the police
arrived but he eventually went home. On April 1, the Respondent sent Soto a letter advising him
of the Respondent’s decision, “after the conclusion of the investigation, … to permanently
separate [Soto] from employment and salary effective this date.” The letter does not specify the
reason for the decision. There is no dispute that Orlandi was not terminated as a result of the
Respondent’s investigation.

The General Counsel also called union delegate Hernandez to testify regarding the
meeting in Milan’s office. Hernandez recalled that Soto came to his area that morning saying
that he had been called to Milan’s office. Soto told Hernandez that “something small” had
occurred between him and Orlandi. Hernandez testified that Soto appeared normal and was not
agitated at the time. Hernandez and Soto then went to Milan’s office where they found Milan,
supervisors Rosario and Lugo, and Orlandi. Hernandez asked what was the purpose of the
meeting. Milan replied that Soto had threatened Orlandi. According to Hernandez, Milan did not
explain the nature of the threat. Soto then denied threatening Orlandi, telling Milan that he and
Orlandi had just been discussing a claim Orlandi was making. Hernandez recalled that Orlandi
interrupted Soto, yelling that Soto had threatened him. Milan told Hernandez that Orlandi had
witnesses, i.e. Santana and Perez, and Rosario went to get them. Hernandez testified further
that Santana and Perez looked surprised when they came into the office. According to
Hernandez, when they were asked whether a threat had been made, Santana asked what they
meant by a “threat” but no one responded. Perez stated that they had been arguing but at no
time was a threat made. After Santana and Perez left the office, Milan told Soto he had to leave.
When Hernandez protested, Milan made a phone call to Nancy Santiago. Hernandez recalled
there was also a discussion about filing a police report with Soto saying he would do so outside
the company. Hernandez and Soto left the office and, after Soto had gone, Milan called
Hernandez back and told him that he had decided to send both men home. After this, Soto
returned, telling Hernandez that the guards would not let him leave the plant until the police
arrived. Hernandez testified that, while waiting for the police, he spoke to Orlandi alone in an
effort to resolve the dispute internally and asked Orlandi what had happened. According to

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Hernandez, Orlandi said, “something had to be done with that man soon”, referring to Soto. On
cross-examination, Hernandez acknowledged that, in his affidavit, Hernandez had stated that
Orlandi explained this statement saying “that man is not okay.”

Hernandez also testified that, after Soto was sent home, he spoke to other employees in
an attempt to find other witnesses to the incident. Although Hernandez claimed that other
employees came forward to support Soto’s version of the event, he was able to name only one
witness, Victor Vargas. Hernandez conceded that he never told Milan, or any other
representative of the company, that Vargas was a witness, even though the Respondent did not
finally terminate Soto until April 1, almost two weeks later. The General Counsel also called
Vargas to testify. Vargas testified that he witnessed the encounter between Soto and Orlandi
from behind a door. He testified that he observed Soto interrogating Orlandi about Orlandi’s
accusation of sabotage, with Orlandi refusing to name whom he suspected of this. When Soto
persisted in demanding that Orlandi investigate before making such accusations, Orlandi said
he was going to go to the boss. Vargas testified that Soto then told Orlandi that they could settle
the matter here and now if Orlandi would tell him who turned off the switch and that, if they
couldn’t resolve things now, they could resolve it later in the street. There is no dispute that
Vargas never conveyed his recollection of the incident to the Respondent.

Orlandi, who testified for the Respondent, gave a somewhat different version of the
events of March 19. Orlandi has worked for the Respondent about 2½ years in the refrigeration
department. One of his responsibilities is to maintain the refrigeration equipment. He testified
that the day before this incident, the alarm sounded signifying that the temperature in the cooler
was too high. Supervisor Lugo asked him to check it out. According to Orlandi, when he went to
the control panel he found that all the switches had been turned off. Orlandi had Lugo see this
for himself before returning the switches to their correct position. Orlandi told Lugo that
someone had to have turned the switches because they would not have changed position on
their own. The next day, March 19, at about 10:00 a.m., Soto came up to him at the electrical
panel where he was working. No one else was present at the time. Orlandi testified that Soto
approached him in a very hostile, challenging way, gesturing with his hands in Orlandi’s face
and standing very close. Orlandi also claimed that there was a strong smell of alcohol on Soto’s
breath. According to Orlandi, Soto said that he was going to “break my face”, accusing Orlandi
of “playing the company’s game.” Orlandi asked if Soto was threatening him and Soto said he
was. Orlandi told Soto he was going to call his supervisor. While Orlandi was on the phone with
Lugo, Soto proceeded to walk away, saying to Orlandi that “these issues were solved out in the
street, like real men” and that Orlandi “shouldn’t continue playing the company’s game.” On
cross-examination, Orlandi acknowledged that, before Soto approached him, there had been
rumors around the plant that Orlandi was accusing his co-workers of sabotage. Orlandi also
speculated that Soto was angry at him for not confirming an accusation Soto had made several
weeks earlier that Supervisor Lugo was harassing employees.

Orlandi testified further that, when he spoke to Lugo on the phone, Lugo told him to go to
his office and that Lugo would look for Soto. While waiting outside Lugo’s office, which is in the
maintenance shop, Orlandi observed other employees working in the area, including Cruz
Perez, whom Orlandi knows as “Tony”, and the electrician, Alberto Santana. Lugo returned from
looking for Soto and shortly thereafter, Soto came into the area. While they were standing
outside Lugo’s office, Soto repeated his statement that “these issues are solved in the street like
men.” According to Orlandi, Soto’s attitude was still belligerent. Lugo told Orlandi to go into his
office while Lugo tried to set up a meeting with Milan, the Operations Director. Present for the
meeting in Milan’s office, according to Orlandi, were Milan, Lugo, Supervisor de Jesus, Orlandi,
Cruz Perez, Santana, and Soto, with Union Delegate Hernandez. Orlandi testified that, in the
meeting in Milan’s office, after Orlandi described what had happened when Soto approached

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him at the electrical panel, Soto vehemently denied threatening Orlandi. Soto did admit that he
told Orlandi that those issues should be solved like men, in the street. According to Orlandi,
Soto admitted this only after Santana and Cruz Perez told Milan they had heard him say this.
Orlandi told Milan he wanted to file a report with the police over Soto’s threat and the police
were then called. After the meeting, Orlandi was not allowed to return to work until the
Respondent investigated the matter. He returned to work about a week later. While he was out
of work, Orlandi provided a written statement, dated March 22, to the Respondent’s attorneys.
This statement is consistent with his testimony at the hearing.

Respondent also called Cruz Antonio Perez to testify about these events.4 Perez, who
has worked for the Respondent since 1984, is the dispatcher in the parts storage warehouse.
On March 19, Perez was in the maintenance shop with Santana when Orlandi came in a bit
agitated followed by the supervisor, Lugo, and followed shortly thereafter by Soto. Perez
testified that Soto was agitated and was saying, in a very loud voice, that issues between men
should be solved on the street, while pointing at Orlandi. Perez then got between Orlandi and
Soto and told Soto that what was happening was not in his best interest, and that Soto should
just shut up and lower his tone of voice or he could get in trouble. Soto paid no attention to
Perez and continued his behavior toward Orlandi. According to Perez, he then stepped aside,
noting that Soto had a slight smell of alcohol about him, as if he had been drinking the day
before and was hung over. At that point, Lugo said he was going to see Mr. Milan to solve the
matter and Soto said he was going to get his union delegate. After they left the area, Perez
returned to his work area in the warehouse. Perez was later called to a meeting in Milan’s office
where the persons identified above were present. According to Perez, when Orlandi accused
Soto of having threatened him, Soto denied it. Perez could not recall anything else that Soto
said in the meeting. Specifically, he was unable to recall what Soto said about the invitation to
Orlandi to settle the matter in the street. Perez recalled the meeting ending with the Union
saying they would take the matter to the next level and Orlandi stating that he would go to the
police. Perez also gave a statement to the Respondent’s attorneys on March 22, while Soto and
Orlandi were on suspension. The statement is essentially consistent with Perez’ testimony at
the hearing. In the statement, however, Perez recalled that Soto did admit during the meeting in
Milan’s office that he had said, in the presence of Perez, Santana and Lugo, that “things
between men are solved in the street.” In his statement, Perez also recited other incidents of
alleged bullying by Soto involving him and other employees. Perez was not asked about these
incidents at the hearing.

Ramon Lugo, the maintenance supervisor for the utility area since December 2002,
testified for the Respondent as well. He corroborated Orlandi’s testimony about the incident on
March 18 when the alarm went off indicating the temperature in the cooler was too high and that
the switch had been turned off. Lugo also confirmed that Orlandi called him at about 10:00 a.m.
on March 19 and asked him to come to the cooler area, saying something about Soto.5 By the
time Lugo got to the area, Soto was gone. Orlandi, who appeared nervous, told Lugo that Soto
had threatened him, saying he was going to rip his head off. Lugo took Orlandi to his office to
wait while he went to find Soto. Lugo testified that he found Soto in the UHT area of the plant
and asked him what happened between him and Orlandi. According to Lugo, Soto seemed
surprised, asking what he meant. When Lugo told him that Orlandi had accused Soto of
threatening him, Soto denied it. Lugo told Soto that he was going to arrange a meeting with
Milan to investigate the matter. Lugo also claimed that he detected a slight smell of alcohol on
4 Neither party called Alberto Santana as a witness.
5 Lugo testified that he could not make out what precisely Orlandi was saying had happened
because the communication was unintelligible. Orlandi was using a cell-phone to call Lugo.

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Soto while talking to him.

Lugo testified further that Soto followed him as he walked back to his office and that, as
they got to the shop where Orlandi was waiting outside his office, with Cruz Perez and Santana
in the same area, Soto said: “problems between men are solved in the street.” He described
Soto as appearing agitated while saying this. Lugo then got between Soto and Orlandi, sending
Orlandi to his office to wait for a meeting with Milan. Soto left, saying that he was going to find
his union delegate. Lugo testified that at the meeting in Milan’s office, Soto denied threatening
Orlandi but admitted making the statement about solving problems in the street. According to
Lugo, Soto claimed that this statement was not a threat. The meeting ended with Orlandi, and
then Soto, each saying they were going to file a police report and with both men suspended
pending an investigation. Lugo also gave a statement to the Respondent’s attorney on March 22
as part of the investigation. The statement is essentially consistent with Lugo’s testimony at the
hearing with one exception. In the statement, he described the threat reported by Orlandi as
Soto telling Orlandi that he was going to “break your face because you are accusing the union
workers of sabotage…things are going to be solved in the street…you are making the
company’s game.”6

Finally, the Respondent called Milan, the Operations Director, to testify about the
meeting in his office. Milan testified that he called the meeting after receiving reports of an
incident involving the two employees. At first, Soto and Union delegate Hernandez were present
with Orlandi, Lugo and de Jesus. Orlandi told Milan that Soto had approached him in the cooler
control area and had threatened to take him outside and break his face. Soto responded by
saying he didn’t know what Orlandi was talking about, that he did not threaten Orlandi. Milan
then asked Orlandi if there were any witnesses and Orlandi mentioned Cruz Perez and Alberto
Santana. Milan testified that Cruz Perez, when he came in, said that he was in the shop when
Soto and Orlandi came into the area and that he heard Soto tell Orlandi that “these things had
to be solved in the street.” When confronted with this, Soto admitted making this statement but
claimed it was not a threat. After hearing from the witnesses, Milan asked Orlandi what he
wanted to do, if he wanted to pursue the matter. According to Milan, Orlandi said he wanted to
file a report with the police.

Milan testified that, while waiting for the police to arrive, he made the decision to send
both men home pending an investigation in order to calm things down because of the fact that
there was an issue between two employees in the same work group with conflicting versions of
what happened. Milan denied that it was Hernandez or the Union that suggested that both
Orlandi and Soto be suspended. After the meeting, Milan referred the matter to Nancy Santiago
in Human Resources for investigation. Milan also testified that, during the period when the
matter was being investigated, he received reports of other incidents involving Soto, including a
threat allegedly made to an employee named Cruz Moran that will be discussed later. According
to Milan, he referred this information to Santiago to investigate. At the conclusion of the
investigation, Santiago informed him that a decision had been made to terminate Soto.

During his direct examination, Milan did not volunteer what, if anything, Santana said
when he was called into the meeting as a witness. Nor did the Respondent’s counsel ask Milan
about this. On cross-examination, Milan corroborated Soto and Hernandez when he
acknowledged that Santana tried to avoid the situation and did not appear pleased to have been
called to the office. Milan testified that, when questioned about the incident, Santana asked
6 The version in Lugo’s statement is also more consistent with Orlandi’s testimony than what
Lugo described at the hearing.

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Orlandi what he considered a threat, but he did not confirm that a threat had been made. This
testimony is consistent with that of Soto and Hernandez.

Santiago testified that the decision to discharge Soto was made by herself, Milan and
the Respondent’s president, Benitez, based on the results of the investigation and a review of
Soto’s entire personnel file. Santiago testified that, as part of the investigation, statements were
taken from witnesses, including Orlandi, Cruz Perez and Lugo. No statement was taken from
Soto. In addition, Santiago and Benitez interviewed Cruz Moran based on a report she received
from Milan indicating that Soto had threatened him as well. According to Santiago, Moran
claimed that Soto threatened him in the cafeteria, in January 2004, in the course of a
conversation about a union work stoppage. Moran reported that when he indicated to Soto that
he intended to work, Soto said, “you know you can get shot.” Benitez was also called to testify
about his interview with Moran and corroborated Santiago regarding Moran’s report. Both
Benitez and Santiago testified that when asked to give a written statement documenting the
alleged threat, Moran refused to do so. Benitez, in contrast to Santiago, recalled that the
information about the threat to Moran came to the Respondent’s attention after Soto had been
terminated.

The Respondent also subpoenaed Moran to testify at the hearing to verify the alleged
threat. However, Moran was uncooperative. While acknowledging meeting with Benitez several
times and being asked whether he had an altercation with Soto, Moran would not confirm ever
being threatened by Soto. Moran also acknowledged being asked to give a statement against
Soto and that he refused. When pressed by the Respondent’s counsel, Moran testified that
there was “group pressure. Like, they were saying that whoever came in [during a work
stoppage] could get – something could happen to them.” However, when counsel asked him a
leading question whether Soto told him he could get shot if he went to work, Moran responded
that he could not remember and that he would be lying if he were to say something. Moran
denied that he feared retaliation from Soto if he testified in this proceeding.

According to Nancy Santiago, when the Respondent made the decision to terminate
Soto, his entire disciplinary history was considered, as evidenced by documents in his
personnel file. These documents, placed in evidence by the Respondent, show that Soto was a
problem employee for several years until late 2001. From that point onward, coinciding with the
change in Union representation, the only discipline Soto received were warnings and
suspensions under the Respondent’s absenteeism and tardiness policy. Under the
Respondent’s policy, which was negotiated with the SIU in 1998 and has continued pending
negotiations with the Union, employees receive points for absences, even when medically
excused, and a half point for leaving early or arriving late. When an employee has amassed 20
points, he automatically receives a first warning, at 28 points, a second warning, at 35 points, a
third warning, at 45 points, a three-day suspension, at 55 points, a five-day suspension and at
60 points, termination. At the end of each calendar year, the employees’ points are zeroed out
and the system starts anew. From 1997 through 2004, Soto accrued sufficient points to receive
discipline up to the 3 and 5 day suspensions, usually in the latter part of the year. He never
accrued enough points to be terminated.7 Santiago testified that she considered this pattern as
evidence that corrective discipline did not work with Soto. She conceded, on cross-examination,
that Soto was not alone in this regard and that other employees annually accrued enough points
to receive the maximum discipline short of termination.

7 There is no evidence how many points Soto had accrued in 2005 before the incident in
March for which he was terminated.

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The other records in Soto’s file, pre-dating the change in unions, reflect conduct that is
more troubling. On June 30, 1999, Nancy Santiago wrote a memo documenting a warning she
gave Soto for playing jokes on a co-worker of short stature which were deemed inappropriate
and led the co-worker to complain to the supervisor. The memo also indicates that Soto did not
appear for a meeting with Santiago to discuss the matter. On February 8, 2000, Rafael
Santiago, a supervisor and no relation to Nancy Santiago, wrote a memo to Soto’s file
documenting Soto’s habit of leaving his cleaning cart unattended for long periods of time while
he was nowhere to be found and of receiving phone calls from outside the plant at about the
same time every night at a particular phone in the plant. Rafael Santiago, who testified at the
hearing regarding the substance of the memo, answered the phone on one occasion and spoke
to a woman who asked to speak to Soto. When Rafael Santiago confronted Soto about his
receipt of these phone calls, Soto became defensive and threatened Rafael Santiago for prying
into his personal issues. Nancy Santiago testified that she considered this incident when making
the decision to terminate Soto because it illustrated his attitude toward management, i.e. that he
was above questioning by supervisors regarding his conduct.

Soto’s file also contained records of an earlier termination, in March 2000, for allegedly
stealing a box of cheese and attempting to run over a security guard who tried to stop him from
leaving the plant. Rafael Santiago also testified about this incident because he was the
supervisor who caught Soto stealing the cheese. The SIU pursued arbitration of Soto’s
discharge and the case was settled on August 30, 2000, at the arbitration, when the two security
guards who had been witnesses failed to appear at the hearing. Under the settlement, Soto was
reinstated without back pay for the 6-7 months he was out of work.

Soto’s file also contains records indicating that Soto was caught on the premises in an
apparent state of intoxication in April 2001 and June 20001. Wanda Torres, a supervisor, wrote
a memo on April 27, 2001 and testified at the hearing regarding an incident where she was
called by a security guard who claimed that he found Soto in the parking lot with a can of beer.
When de Jesus confronted Soto, she did not see the can of beer and could not tell if he was in
fact drunk but she described behavior that would lead one to such a conclusion. Torres sent
Soto home because she believed he was in no state to continue working. Soto received no
other discipline for this incident. Two months later, after a security guard reported similar
behavior suggesting that Soto was under the influence, Nancy Santiago suspended him on July
2, 2001 pending an investigation. When the investigation was concluded, on July 10, 2001, Soto
was suspended for an additional 4 days. The Respondent also placed in evidence certified
records showing that, in this same period, Soto was arrested for possession of cocaine, on April
25, 2001. These records further reveal that Soto was found guilty of this offense on December
31, 2001 and received a fine at sentencing on May 29, 2002. Soto acknowledged this criminal
history at the hearing but claimed that he went through a diversion program under which the
conviction was no longer on his record.

The last incidence of discipline in Soto’s file, other than the attendance-related discipline
described above, was a written warning he received on September 14, 2001 for being found
asleep on the job. This is the warning for which he sought representation from the SIU and
which led him to file the prior unfair labor practice charges when that Union did not pursue his
grievance over the warning.

When confronted with his disciplinary record at the hearing, Soto claimed he was
unaware of most of the documents in his file and that he knew nothing about the events
described in the documents. However, he did acknowledge having been fired previously and
having received the warning in September 2001 which led him to seek a change in union
representation.

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The General Counsel offered evidence at the hearing in an attempt to show that Soto
was treated differently than other employees for engaging in similar conduct. Jaime Torrez, a
30-year employee on medical leave at the time of the hearing, testified that he had a verbal
confrontation with then-supervisor Kermit Pagan about three years ago. According to Torrez,
Pagan ordered him to perform a task he was unable to do because of a medical condition.
When he refused, Pagan became disrespectful towards him and Torrez responded in kind. The
situation escalated to the point that the two men were about to fight but were prevented from
doing so by other employees. Torrez testified that, at one point, he invited Pagan to settle their
dispute outside, after 3:00 p.m. Torrez testified further that he received no discipline as a result
of this incident. On the contrary, Pagan apologized to him a few days later. Torrez conceded on
cross-examination that no report of this incident was made to Nancy Santiago.

Torrez also testified about an incident around the same time as the one above, when he
and co-worker Carlos Berrios had an altercation after Torrez teased Berrios about drinking.
Torrez testified that he and Berrios used foul language and even assaulted one another before
supervisor KiKi Valencia and co-workers separated them. Again, Torrez received no discipline
for this. At most, Valencia told the two men to settle their dispute or they would be fired. Torrez
acknowledged that neither he nor Berrios complained to management about the other’s
behavior. Berrios, who was called as a witness by the General Counsel, was not asked to
corroborate this testimony. The Respondent called the supervisor, Valencia, who claimed the
incident never happened.

Torrez testified to a third incident, about a year and a half before the hearing, when he
witnessed a confrontation between Israel Hernandez and Orlandi. According to Torrez,
Hernandez was angry at Orlandi for accusing him of shutting off a breaker and threatened to
break Orlandi’s neck. Hernandez was about to assault Orlandi when Torrez intervened and took
Hernandez outside to calm down. Although Torrez claimed that supervisor Ramon Lugo was
present, he acknowledged on cross-examination that Hernandez only uttered the threat to
Torrez. Again, there is no evidence that this incident was brought to the attention of the
Respondent’s Human Resources Department.

The General Counsel called Berrios as a witness to testify about an incident he had with
another employee Carlos Agosto on or about June 13, 2004. The incident occurred the day after
a work stoppage by employees in support of the Union. When Berrios questioned Carlos Agosto
why he had gone to work instead of honoring the work stoppage, Carlo Agosto became upset.
After exchanging words, Carlos Agosto told Berrios that, if he had a problem with Agosto, they
could go outside and solve it like men, with fists. Berrios testified that Carlos Agosto said this as
he walked outside and Berrios followed him. On the way out, they encountered Carlos’ brother,
Francisco Agosto, who, upon learning of his brother’s plans to fight Berrios, convinced Carlos to
go with him to the office of Pedro Trinidad, the Respondent’s Operations Director at the time.
Berrios went outside to have a cigarette and heard his name paged to come to Trinidad’s office.
Berrios went to Trinidad’s office with his delegate, Juan Hernandez. Berrios testified that he
and Berrios were still antagonistic during the meeting in Trinidad’s office, with Carlos Agosto
brazenly stating his desire to go outside and fight Berrios. When Berrios indicated his
willingness to fight, Trinidad told the men to calm down, that there would be no fighting or they
would both be thrown out. By the end of the meeting, tempers had calmed and neither Berrios
nor Carlos Agosto received any further admonishment for this incident.8 Hernandez also
Continued
8 On cross-examination, Berrios testified that he had no intention of complaining to
management about Agosto’s calling him outside to fight. According to Berrios, the “policy”

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testified about his involvement in the Berrios-Agosto dispute. He corroborated Berrios testimony
that Berrios and Carlos Agosto were still agitated and looking to fight during the meeting but that
Trinidad was able to calm things down.

The Respondent called the Agosto brothers to testify about this incident. Carlos Agosto
confirmed Berrios’ testimony that he had an argument with Berrios over Berrios’ questioning him
about his participation in a work stoppage, but claims it was Berrios who invited him outside to
fight. Carlos Agosto also confirmed the testimony that his brother, Francisco, stopped him on
the way out and convinced him to bring the dispute to the attention of Trinidad. Carlos Agosto
denied, however, that Berrios’ invitation to fight was mentioned during the meeting in Trinidad’s
office. According to Carlos Agosto, he only complained to Trinidad about Berrios’ being
disrespectful toward him. He did not tell Trinidad that Berrios invited him outside because he did
not want to get Berrios in trouble. Francisco Agosto corroborated Carlos in this regard, testifying
that he was not even aware that Berrios wanted to fight his brother until after the meeting.

Finally, General Counsel called Wilberto Burgos, who has been employed by the
Respondent since 1991, to testify about an incident that occurred 5-6 years earlier in which he
and a subcontractor’s employee known as “Grumpy” pushed each other and nearly came to
blows before other employees intervened to stop them from fighting. After they were separated,
Supervisor Gerard Santiago came in. According to Burgos, the supervisor told him that this
could not happen again. Burgos received no discipline as a result of this incident.

In addition to the testimony of the witnesses described above, the General Counsel cites
evidence from the Respondent’s personnel records regarding one other employee with an
extensive disciplinary record who had not been terminated by the Respondent.9 Employee Jose
del Valle’s personnel folder contains the following disciplinary history:

• April 12, 2005 suspension for three days for failing to verify a machine for
which he was responsible.
• January 7, 2005 suspension for three days for leaving work area without
permission.
• August 7, 2004 suspension for three days for taking excessive breaks and
being disrespectful to a supervisor.10
• July 12, 2004 memo to file prepared by the Respondent’s finance director
and a note indicating that del Valle’s wife called the company about a threat
of sabotage.
• December 19, 2003 suspension for three days under the Respondent’s
attendance policy.
• November 11, 2003 suspension for three days after being found asleep
during working hours.

In addition to the Absenteeism and Tardiness policy described above, the Respondent
among employees is to settle such disputes among themselves without getting the Respondent
involved.
9 At the hearing, Counsel for the General Counsel questioned Nancy Santiago about the
disciplinary records of several other employees. However, she does not cite these other
employees in her brief as evidence of disparate treatment.
10 The English translation of del Valle’s alleged insult of his supervisor reflected in the
transcript is unclear but suggests he was calling his supervisor stupid.

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maintains a set of disciplinary rules and procedures, which are in evidence. These rules specify
various levels of discipline for different types of misconduct. Under these rules, some types of
misconduct would warrant discharge for the first offense, such as stealing, falsifying company
records, or introducing, possessing or using illicit drugs on company property. Other types of
misconduct are subject to progressive discipline, such as gambling on company premises,
violating parking regulations, misusing company bulletin boards, or unauthorized solicitation. A
third category of rule violations do not specify a particular level of discipline. For these offenses,
which include disrespecting coworkers or members of management or threatening to assault a
co-worker, member of management or client, the rules provide that “the disciplinary measure
will depend on the facts of each situation and can include discharge.”

B. Analysis and Conclusion

The sole issue in this case is whether the Respondent, in terminating Soto on April 1,
was motivated by any union or protected concerted activity engaged in by Soto. In Wright
Line,11 the Board held that, in cases where employer motivation is the issue, the General
Counsel must first establish, by a preponderance of the evidence, that union or protected
concerted activity was a “motivating factor” in the decision to discharge an employee. In order to
meet his initial burden, the General Counsel must show that the employee was engaged in
protected activity, that the employer was aware of this activity, and that the employer exhibited
animus against such activity. See also Naomi Knitting Plant, 328 NLRB 1279 (1999); Manno
Electric, 321 NLRB 278, 280 fn. 12 (1996). Only if the General Counsel has made the requisite
showing will the burden shift to the Respondent to “demonstrate [by a preponderance of the
evidence] that the same action would have been taken even in the absence of the protected
conduct.” Wright Line, 251 NLRB supra, at 1089. See also NLRB v. Transportation
Management Corp., 462 U.S. 393, 399-403 (1983). Where an employer asserts, as here, that
some type of employee misconduct was the reason for discharge, the employer “does not need
to prove that the employee actually committed the alleged offense. It must show, however, that
it had a reasonable belief the employee committed the offense, and that the employer acted on
that belief in taking the adverse action against the employee.” Midnight Rose Hotel & Casino,
343 NLRB No. 107 (December 16, 2004). See also Doctors’ Hospital of Staten Island, Inc., 325
NLRB 730, fn. 3 (1998) and cases cited therein.

There is no dispute that Soto was a union delegate and a member of the Union’s
negotiating committee and that the Respondent was at least aware of his status as such. As for
Soto’s testimony that he was the individual who brought the Charging Party into the
Respondent’s facility to replace the SIU, there is no evidence in this record that Respondent
was aware of his role in the organizing campaign. As for Soto’s self-serving testimony that he
was the most active and dynamic of the Union’s three delegates, there is no objective evidence
in the record to support this claim and I attach little weight to it. There is also no independent
evidence in this record of any animus toward either Soto in particular or the Union in general.

The General Counsel, acknowledging the absence of direct evidence of animus, relies
instead on circumstantial evidence to prove that Respondent was motivated by Soto’s union
activity when it discharged him. In the cases cited by the General Counsel and other decisions,
the Board has repeatedly stated that animus and unlawful motivation may be inferred from
circumstances such as timing, the failure to adequately investigate alleged misconduct, and
disparate treatment. See New Otani Hotel & Garden, 325 NLRB 928, fn. 2 (1998); Adco Electric,
11 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S.989 (1982).

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307 NLRB 1113, 1128 (1992), enfd. mem. 6 F.3d 1110 (5th Cir. 1993); Electronic Data Systems
Corp., 305 NLRB 219 (1991); Visador Co., 303 NLRB 1039, 1044 (1991); Asociacion Hospital
Del Maestro, 291 NLRB 189, 204 (1988); Clinton Food 4 Less, 288 NLRB 597, 598 (1988). The
Board, in evaluating the circumstances of an employee’s discipline or discharge to determine
motivation, will often look for a nexus between protected activity and the employer’s action.

The only evidence in the record showing a connection between Soto’s union activity and
his discharge is his testimony regarding his reason for speaking to Orlandi on March 19. Soto’s
claim that he wanted to question Orlandi about the rumors that Orlandi was accusing his co-
workers of sabotage supports a finding that he was engaged in protected activity, at least
initially. I note that Soto’s testimony that this was his purpose in speaking to Orlandi that
morning is corroborated to some extent by Orlandi, who acknowledged being aware of these
rumors and admitted telling his supervisor the day before that he believed someone deliberately
turned off the switches for the cooler. Moreover, the comment that Orlandi claims Soto made,
i.e. that Orlandi “was playing the company’s game” suggests the concerted nature of Soto’s
encounter with Orlandi. Because there is evidence in the record that issues of employee
sabotage had been raised before in the course of the parties’ bargaining, I find that Soto had a
reasonable basis to be concerned, as a union delegate, with the impact of Orlandi’s statements
on bargaining unit employees. Based on this evidence, I find that Soto was engaged in
concerted union activity when he initially confronted Orlandi on March 19 at the electrical panel.

It is unclear from the evidence in the record, however, whether the Respondent was
aware, when it investigated the incident, that Soto was engaged in union or other concerted
activity during the incident with Orlandi. The Respondent began its investigation in response to
a complaint from Orlandi that Soto had threatened him. There is no evidence that Orlandi told
either Lugo or Milan that the threat was made in connection with Soto’s investigation of rumors
of sabotage. Moreover, when Soto was questioned in Milan’s office about the alleged threat, he
did not volunteer the purpose of his questioning of Orlandi. He merely explained to Milan that
his statement to Orlandi about settling things outside meant that he did not want to discuss
internal union matters in the presence of supervisors. He did not specify in this meeting what
internal union matters he wanted to settle with Orlandi. Similarly, union delegate Hernandez did
not mention in this meeting that Soto was investigating any matter for the Union. He merely
recalled that Soto, in denying that he threatened Orlandi, told Milan that he and Orlandi had
been discussing a claim Orlandi was making. I can not find, on the basis of this evidence, that
Respondent was aware of the concerted nature of Soto’s interaction with Orlandi on March 19.

Even assuming Respondent was aware that Soto was investigating rumors of employee
sabotage when he approached Orlandi, this would not insulate Soto if he in fact threatened
Orlandi in the course of their interaction.12 In this regard, I credit Orlandi over Soto. I saw
nothing in Orlandi’s demeanor, and General Counsel has not pointed anything out, that would
cause me to believe that Orlandi was not being truthful when he testified that Soto threatened to
“break his face”. On the other hand, Orlandi’s history, albeit somewhat distant from this event,
suggests he had a tendency to resort to threats and bullying in his dealings with other
employees and management. Moreover, his demeanor on the witness stand did not convince
me he was being truthful regarding his encounter with Orlandi. Soto’s feigned ignorance when
confronted with records of past misdeeds did not instill confidence in the reliability of his
12 If the Respondent discharged Soto in the mistaken belief that he engaged in misconduct
in the course of protected concerted activities, then the rationale of NLRB v. Burnup & Sims,
379 U.S. 21, 23 (1964) would apply. See also Ideal Dyeing & Finishing Co., 300 NLRB 303
(1990). The General Counsel has not advanced this theory of a violation.

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testimony. Soto also tended to be evasive and argumentative in response to questions from
counsel for the Respondent.

In addition to the threat made by Soto in his one-on-one encounter with Orlandi, there is
no dispute that, in the presence of supervisor Lugo and other employees, Soto invited Orlandi to
settle their dispute, “like men, in the street.” Orlandi’s testimony in this regard was corroborated
by Lugo and Cruz Perez, whom I found to be credible witnesses. In fact, Soto acknowledged
that he admitted making such a statement in the meeting in Milan’s office, although he
explained that he merely meant that internal union matters should be resolved outside the
jurisdiction of the employer. The expression used by Soto is apparently a common one among
the Respondent’s employees and all employees understand its true meaning, i.e. that such
personal disputes should be resolved through fighting outside the Respondent’s premises.
Based on the credited testimony of Orlandi and Soto’s admission, I find that the Respondent
had a reasonable belief that Soto threatened Orlandi on March 19.

The preponderance of the evidence thus establishes that the Respondent discharged
Soto, a union delegate, after he was admittedly involved in an incident with another employee
where the evidence presented to the Respondent suggested that Soto had threatened an
employee with physical assault. The General Counsel’s argument that the Respondent was
motivated, not by any threat made by Soto to Orlandi but by his union activity, is based primarily
on its claim that Soto was treated differently than other employees who engaged in similar
conduct. I find that the General Counsel has not met her burden of proof on this issue.

The records from employee del Valle’s file, showing a series of suspensions for various
misconduct, are not evidence of disparate treatment. None of the misconduct for which del Valle
received discipline involved threatening conduct toward other employees. As for the various
incidents described by General Counsel’s witnesses, the testimony as to some was conflicting.
Even assuming General Counsel’s witnesses were all credited, the fact that none of the
employees who testified received any discipline for allegedly threatening or fighting with co-
workers does not establish that the Respondent was discriminatorily motivated when it decided
to terminate Soto for his conduct toward Orlandi. The General Counsel has not demonstrated
that any of these employees had the kind of disciplinary history that Soto had. Moreover, in
Jaime Torrez’ case, his invitation to supervisor Pagan to settle things outside was apparently
provoked by Pagan, as suggested by Pagan’s apology to Torrez a couple days later. The
incident between Torrez’ and long-time friend Berrios, who did not even corroborate the
testimony, emanated from horseplay that got out of hand. As to the incidents between Orlandi
and Hernandez, Berrios and Carlos Agosto, and Burgos and “Grumpy”, it is not clear from the
record whether the Respondent’s managers were aware of all the facts since none of the
employees pursued complaints against each other. The incident on March 19 which led to
Soto’s discharge, in contrast, involved an unprovoked threat directed at an employee who
complained to his supervisor where there was no evidence to suggest that the incident involved
simple horseplay or other harmless bantering among employees. Soto’s admission in Milan’s
office, that he had invited Orlandi to settle their dispute in the street, when considered in the
context of Soto’s history of threatening and bullying conduct toward other employees and
supervisors, made this situation substantially different from the situations cited by General
Counsel. See New Otani Hotel & Garden, 325 NLRB supra, at 941-945.

Based on the above, and the record as a whole, I find that the General Counsel has not
met its burden under Wright Line, supra, of proving that any union or protected activity was a
motivating factor in Soto’s discharge. In particular, I note the absence of any direct evidence of
animus or of any nexus between known union activity and the decision to discharge Soto. I also
note the absence of any evidence of blatant disparate treatment or other circumstance from

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which one could infer unlawful motivation. The evidence establishes that Respondent was
motivated solely by what it reasonably perceived to be serious misconduct engaged in by Soto
directed at another employee. Even assuming General Counsel had proved a prima facie case
of discrimination, I would find that the evidence here is sufficient to meet the Respondent’s
burden of proving that it would have discharged Soto for threatening Orlandi even absent any
union activity. Accordingly, I shall recommend that the complaint be dismissed in its entirety.

Conclusions of Law

By discharging Orlando Soto on April 1, 2005, the Respondent has not engaged in any
unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended13

ORDER
The complaint is dismissed.

Dated, Washington, D.C.

____________________
Michael A. Marcionese
Administrative Law Judge

13 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.