Lockheed Martin Astronautics

National Labor Relations Board - Board Decisions

Sep 28, 2000

332 N.L.R.B. 416 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 416
Lockheed Martin Astronautics and Joseph F. Fiala
and Anthony H. Romano and Lee Gutierrez.
Cases 27–CA–14557, 27–CA–14600, 27–CA–
14605, and 27–CA–15118
September 28, 2000
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On June 27, 2000, Administrative Law Judge Albert
A. Metz issued the attached supplemental decision.1 The
Respondent filed exceptions and supporting arguments,
and the General Counsel filed an answering 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 decided to
affirm the judge’s rulings,2 findings,3 and conclusions
and to adopt the recommended Order.

1 On January 6, 2000, the Board issued a Decision and Order in the
captioned cases. 330 NLRB 422. Although it decided the majority of
the issues presented, the Board found it necessary to remand the pro-
ceedings to the judge for further findings and conclusions with regard
to the allegations that the Respondent unlawfully suspended and dis-
charged Lee Gutierrez. The judge’s supplemental decision addresses
the issues that were the subjects of the remand.
2 The Respondent has excepted to the judge’s denial of its motion to
reopen the record to receive the testimony of Jay Buehler, who was
responsible for making the final decision to discharge Gutierrez. We
find no merit in that exception. A party moving to reopen the record
must state “the additional evidence sought to be adduced, why it was
not presented previously, and that, if adduced and credited, it would
require a different result. Only newly discovered evidence, evidence
which has become available only since the close of the hearing, or
evidence which the Board believes should have been taken at the hear-
ing will be taken at any further hearing.” Sec. 102.48(d)(1) of the
Board’s Rules and Regulations. The proffered testimony meets none of
those requirements. The Respondent does not specify what testimony
Buehler would give (it says only that he would describe the Respon-
dent’s practices for dealing with employees who make threats), and it
does not claim that his testimony would require a different result. Nor
does the Respondent have any satisfactory explanation for Buehler’s
failure to testify at the hearing; indeed, it admits that he was available
to testify at that time. The Respondent does not contend—nor could
it—that Buehler’s evidence is newly discovered or has become avail-
able only since the close of the hearing. The Respondent’s contention
that Buehler’s testimony became relevant only after the remand is
entirely meritless. That testimony, through which the Respondent
apparently would attempt to establish the validity of Gutierrez’ dis-
charge, was every bit as relevant at the time of the hearing as it would
have been on remand. See A. N. Electric Corp., 276 NLRB 887, 897
(1985).
3 The Respondent has excepted to the judge’s finding that on May 1,
1996, Gutierrez was questioned by the Respondent concerning employ-
ees’ discussions of employee Jolene Conn’s medical situation. There is
no merit in that exception. The judge’s finding is consistent with his
earlier findings, based on Gutierrez’ apparently credited testimony, to
which the Respondent did not except.
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act by suspending Lee Gutierrez
for 3 days on May 1, 1996, and by discharging him on
January 30, 1997. The judge found that Gutierrez’ pro-
tected discussions of employee Jolene Conn’s medical
restrictions were a substantial motivating factor in the
Respondent’s decision to suspend him, and that the Re-
spondent had not demonstrated that it would have sus-
pended him even absent his protected activity.4 The
judge also found that Gutierrez’ discharge violated Sec-
tion 8(a)(3) and (1) because it was based on his entire
disciplinary record, including the unlawful suspension,5
and because the Respondent had not demonstrated that it
would have discharged him even absent his protected
discussions.
In its exceptions, the Respondent contends that the
judge erred in finding that Gutierrez’ suspension was
substantially motivated by his protected conduct. We
find no merit in that contention. As the judge found,
Gutierrez’ suspension letter lists his protected conduct as
one of the reasons for his suspension. The letter is con-
sistent with Gutierrez’ credited testimony that the Re-
spondent’s employee relations administrator, Deanna
Duca, informed him on May 1 that he was being sus-
pended in part for his protected discussions.6 The
judge’s finding that Gutierrez’ protected conduct was a
motivating factor in his suspension thus is well supported
by the record.
The Respondent also argues, on the basis of Duca’s
testimony, that it would have suspended Gutierrez solely
because of his threatening remarks to employee Steve
Piccioni. The judge discredited Duca’s testimony in that
regard, however, partly because of her demeanor and
partly because of the statements in Gutierrez’ suspension
letter. In substance, the Respondent invites us to over-
rule the judge’s credibility determination. We decline
the invitation. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect.7 We have
carefully examined the record and find no basis for re-
versing the judge’s findings.
The Respondent further contends that, even if
Gutierrez’ suspension was unlawful, his discharge was
valid because the General Counsel did not show that the
discharge was substantially motivated by the suspension
4 Wright Line, 251 NLRB 1083 (1980).
5 Soltech, Inc., 306 NLRB 269, 279 (1992).
6 As noted above, the Respondent did not except to the judge’s cred-
iting of Gutierrez’ account of his May 1 interview.
7 Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951).
332 NLRB No. 37
LOCKHEED MARTIN ASTRONAUTICS 417
and because Gutierrez would have been discharged even
if he had not been suspended. Again, we find no merit in
those contentions.8 As the judge found, Gutierrez’ dis-
charge letter stated that the discharge was based on his
past disciplinary record, which included the May 1 sus-
pension. Duca testified to the same effect. In fact, Duca
admitted that the suspension was the most severe disci-
pline in Gutierrez’ record and that it was an important
consideration in the Respondent’s decision to discharge
him. She did not claim that he would have been dis-
charged even if he had not been suspended. The record
thus clearly supports the judge’s findings that the Re-
spondent relied in part on the unlawful suspension in
making the decision to terminate Gutierrez, that his dis-
charge was motivated in substantial part by his protected
activities, and that the Respondent failed to show that it
would have discharged him had he not engaged in those
activities.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Lockheed Martin Astronaut-
ics, Littleton, Colorado, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.

Michael T. Pennington, Esq., for the General Counsel.
Matthew Coyle, Esq. and Dane A. Bartlett, Esq., for the Re-
spondent.
SUPPLEMENTAL DECISION
ALBERT A. METZ, Administrative Law Judge. By decision
dated January 6, 2000, the Board remanded a portion of this
case for further findings concerning the suspension and dis-
charge of Lee Gutierrez.1 On the entire record, including my
observation of the demeanor of the witnesses, and after consid-
eration of the parties’ supplemental briefs, I make the following
findings
I. BACKGROUND
The facts are fully set forth in the Board’s decision. The
events relevant to Lee Gutierrez are as follows. On May 1,
1996, the Respondent suspended Gutierrez for 3 days. Two
reasons were given for the suspension. One was that Gutierrez
had made threatening remarks to guard Steve Piccioni. The
other was that he had disobeyed the Respondent’s instructions
and talked to other employees about the investigation of fellow
employee Jolene Conn’s ADA complaint. On January 30, 1997,

8 The Respondent’s arguments are contrary to an earlier representa-
tion to the Board. In its reply brief in support of its previous excep-
tions, the Respondent stated that “[i]t is not Respondent’s position that
the discharge would have taken place without the disciplinary under-
pinning of the suspension. If the discharge is suspect [sic], it is because
the suspension was one of the factors weighed in the discharge deci-
sion.”
1 330 NLRB 422
Gutierrez was discharged. His discharge notice stated that he
was being terminated for leaving the plant premises without
permission on January 22, 1997, and after “careful considera-
tion of [his] past work record.”
II. APRIL 24 “COUNSELING”
On April 24, 1996, Gutierrez was interviewed by Respon-
dent’s agents, Duca and Campbell, concerning alleged threats
to Piccioni and his knowledge of discussions among employees
about Conn’s medical situation. The General Counsel argues
that Gutierrez’ April 24 counseling for “inappropriate com-
ments and behavior” constituted unlawful discipline.2 The
Respondent contends, however, that, as both Duca and Camp-
bell testified, it did not consider the counseling to be discipline,
and that, for that reason, Duca did not consider it part of
Gutierrez’ disciplinary record when deciding to discharge him.
In this instance I credit Duca and Campbell that the April 24
counseling of Gutierrez did not amount to discipline.3 I credit
Duca’s testimony that this counseling was not considered by
the Respondent in discharging Gutierrez.
III. SUSPENSION
During a May 1, 1996 meeting, Gutierrez was questioned by
the Respondent about employees’ discussions concerning
Conn’s medical situation. At the conclusion of the meeting
Gutierrez was suspended for 3 days. He was subsequently
given a letter dated May 1 concerning his suspension. The letter
states two reasons why he was being suspended. The first rea-
son concerned threatening statements he made to Piccioni. The
second reason cited was:

In addition, on May 1, 1996, you admitted you had talked
with fellow employees regarding this investigation. You were
given specific instructions by this Employee Relations Ad-
ministrator and Kathy Campbell from the EEO Department
on April 24, 1996, not to discuss with anyone awareness of or
issues concerning the investigation. [GC Exh. 2.]

The Respondent’s May 1 letter thus states that part of the
reason for Gutierrez’ suspension was his protected activity.4 I
credit this admission. The Respondent argues that Duca’s tes-
timony demonstrated that it would have suspended Gutierrez in
May for the threats to Piccioni, even absent his protected dis-
cussions, and therefore that the suspension was not unlawful.
2 The Government’s complaint did not allege the April 24 counsel-
ing of Gutierrez to be unlawful. I find that his counseling was not
unlawful under the Act.
3 As noted below, Duca’s testimony is only partially credited. NLRB
v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950) (“Noth-
ing is more common in all kinds of judicial decisions than to believe
some and not all of what a witness says”); Champion Papers, Inc. v.
NLRB, 393 F.2d 388, 394 (6th Cir. 1968) (“A factfinder—jury, judge or
administrative agency—is not barred from finding elements both of
truth and untruth in a witness’ testimony”); NLRB v. Pat Izzi Trucking
Co., 395 F.2d 241, 244 (1st Cir. 1968) (“That part of a witness’ testi-
mony is not believable does not of itself destroy the rest”).
4 The Board found the Respondent violated the Act by broadly pro-
hibiting discussion among employees concerning Conn’s medical situa-
tion when the discussions concerned their working conditions and the
possibility of filing a related grievance
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 418
Based on her demeanor, and the May 1 letter, I do not credit
Duca’s testimony in this regard. I find that the Respondent has
not shown that the same action would have taken place regard-
less of the unlawful reason. Power Equipment Co., 330 NLRB
70, 74 (1999) “An employer cannot simply present a legitimate
reason for its action but must persuade by a preponderance of
the evidence that the same action would have taken place”.
I find that the Government proved that Gutierrez’ discus-
sions relating to working conditions and a possible grievance
filing were a substantial motivating factor in the Employer’s
decision to suspend him. I find that the Respondent suspended
Gutierrez on May 1, in part, because he had engaged in pro-
tected concerted activity. I further find that this suspension
would not have taken place solely because of his threats to a
coworker, thus, the Respondent has failed to demonstrate that it
would have suspended Gutierrez regardless of his protected
discussions. Finally, I find that the Respondent’s suspension of
Gutierrez violates Section 8(a)(1) and (3) of the Act. Wright-
Line, 251 NLRB 1083 (1980).
IV. DISCHARGE
On January 30, 1997, Gutierrez was discharged. His dis-
charge notice stated that he was being terminated for leaving
the plant premises without permission on January 22, 1997, and
after “careful consideration of [his] past work record.” Duca
testified that the Respondent took Gutierrez’ entire disciplinary
record into account in deciding to discharge him, and that
Gutierrez probably would not have been discharged solely for
leaving the premises without permission.
When an employer is charged with discriminating against an
employee in violation of Section 8(a)(3), the burden is on the
General Counsel to demonstrate that the employee’s union or
other protected activity was a substantial or motivating factor in
the employer’s decision. If the General Counsel carries that
burden, the burden then shifts to the employer to prove that it
would have taken the same action even absent the employee’s
protected activity. Wright Line, supra. As found above, the
Respondent violated the Act by its May l suspension of
Gutierrez. I find that the Respondent did rely on Gutierrez’
entire disciplinary record, including his unlawful May 1 sus-
pension, in making the decision to terminate him. I find that
the discharge was thus motivated in substantial part by his pro-
tected activities and that the Respondent has failed to demon-
strate that it would have discharged him even if he had not
engaged in protected discussions. I find that the Respondent
violated Section 8(a)(1) and (3) of the Act when it terminated
Gutierrez on January 30, 1997. Soltech, Inc., 306 NLRB 269,
279 (1992) (Reliance on discipline issued in violation of the
Act as a motivating factor for a subsequent discharge is suffi-
cient to establish a prima facie case that the discharge violates
the Act).
CONCLUSIONS OF LAW
1. Lockheed Martin Astronautics is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The United Plant Guard Workers of America, Local 265 is
a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent violated Section 8(a)(1) and (3) ofthe Act.
4. The foregoing unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of 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 recommended5
ORDER
The Respondent, Lockheed Martin Astronautics, Littleton,
Colorado, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending or discharging Lee Gutierrez, or any other
employee, because they engage in union or other protected
concerted activity.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Lee
Gutierrez full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Lee Gutierrez whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him, computed on a quarterly basis, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful suspension and discharge
of Lee Gutierrez and within 3 days thereafter notify him in
writing that this has been done and that his suspension and
discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents 10 for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including
an electronic copy of the records if stored in electronic form,
necessary to analyze the amount of backpay due under the
terms of this Order. Bryant & Stratton Business Institute, 327
NLRB 1135(1999).
(e) Within 14 days after service by the Region, post at its fa-
cility in Littleton, Colorado, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided

5 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 pur-
poses.
6 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-
LOCKHEED MARTIN ASTRONAUTICS 419
by the Regional Director for Region 27, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent 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 the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since May 1, 1996. Excel Container,
Inc., 325 NLRB 17 (1997).
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT suspend or discharge Lee Gutierrez, or any
other employee, because they engage in union or other pro-
tected concerted activity.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Or-
der, offer Lee Gutierrez full reinstatement to his former job or,
if his job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Lee Gutierrez whole for any loss of earn-
ings and other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Or-
der, remove from our files any reference to the unlawful sus-
pension and discharge of Lee Gutierrez and, WE WILL, within
3 days thereafter, notify him in writing that this has been done
and that his suspension and discharge will not be used against
him in any way.

LOCKHEED MARTIN ASTRONAUTICS