McClatchy Newspapers, Inc. d/b/a The Fresno Bee

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1161 (N.L.R.B. 2002)

FRESNO BEE 1161
McClatchy Newspapers, Inc. d/b/a The Fresno Bee
and Graphic Communications International Un­
ion, Local 404, AFL–CIO. Cases 32–CA–17791–
1 and 32–CA–17986–1
August 1, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND COWEN
On August 27, 2001, Administrative Law Judge Lana
H. Parke issued the attached decision. The General
Counsel, the Charging Party, and the Respondent each
filed exceptions and supporting briefs; the Respondent
filed briefs in response; 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 decided to
affirm the judge’s rulings,1 findings, and conclusions,
except as follows.
The judge found the General Counsel met his initial
burden of showing that the Respondent suspended and
discharged employees Glen Evans, David Otero, Allan
Washington, and Jose Aguirre in part due to union ani­
mus. See Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). However, she found that the Respondent affirma­
tively showed that Evans, Washington, and Aguirre
would have been discharged for misconduct even if they
had not been associated with the Union. The judge also
found, and we agree, that union animus was not shown to
be involved in the suspension and discharge of Robert
Barrientez.
We agree, for the reasons stated by the judge, that the
Respondent has shown that the suspensions and dis­
charges of Evans, Washington, and Aguirre would have
occurred even absent their protected, concerted activity.
We need not pass upon the judge’s initial finding that the
suspensions and discharges of Evans, Otero, Washing-
ton, and Aguirre were motivated in part by union ani-
mus.2 However, we find merit in the Respondent’s ex-
1 No exceptions were filed to the judge’s dismissal of allegations that
the Respondent violated Sec. 8(a)(1) of the Act by assisting employees’
decert ification efforts and that the Respondent violated Sec. 8(a)(3) and
(1) by suspending and issuing a final warning to employee Joseph
Kloss.
2 In adopting the judge’s dismissal of these allegations, Member
Cowen would find that the General Counsel failed to establish a prima
facie case that union animus played a role in the Respondent’s suspen­
sions and discharges of employees Evans, Otero, Washington, and
Aguirre. He notes, as an initial matter, that the judge found no evi­
dence that the Respondent was aware that Glenn Evans was a union
ceptions to the judge’s finding that the Respondent vio­
lated Section 8(a)(3) and (1) by suspending and discharg­
ing Otero. As explained below, we agree with the Re­
spondent’s argument that it has also affirmatively shown
that it would have suspended and discharged David
Otero even absent his union activity.
The credited evidence, including Otero’s admission,
shows that the Respondent’s pressroom manager, Wil­
liam King, found Otero asleep at his workplace in the
pressroom during the day shift on September 25, 1999, at
a time when the presses were running. Otero did not
move or open his eyes for more than a minute while
King observed him, even though an AGV (robotic vehi­
cle) carrying paper came through the pressroom, beeping
as it moved.
The Respondent had a written policy stating that
“sleeping while on duty” could result in “disciplinary
action and/or termination.” Only 2 months earlier, Otero
had been found sleeping during worktime by another
supervisor, Jack Wink, and Wink had warned Otero on
that occasion that “you could lose your job” for that
infraction.3 Employee Kloss testified that Otero was the
only employee he could recall having seen with his eyes
closed at work (other than himself 4 or 5 years earlier,
when he was coming to work sick).
supporter. With respect to known union supporters Otero, Washington,
and Aguirre, he notes that the judge found no direct evidence that the
Respondent harbored union animus, and that she rejected arguments by
the General Counsel and the Charging Party that (1) statements made
outside the 10(b) period showed animus, (2) that the Respondent sought
to discharge union adherents to insure that the Union would lose a
decertification election, (3) that the Respondent’s investigations of
misconduct by union adherents were one-sided, (4) that union adherents
were accorded disparate treatment, and (5) that the Respondent retali­
ated against union supporters. Member Cowen finds no merit in the
argument, accepted by the judge, that the Respondent’s removal of
Dennis Lyall and Fred Van Der Muelen as pressroom managers, and its
choice of William King for that position, indicate union animus. Mem­
ber Cowen rejects the judge’s reasoning that, because “low morale”
was a factor in these decisions, and dissension lingering from the union
election was a factor in the morale problem, the Respondent’s choice of
King must reflect an intent to “penalize” union supporters. The record
shows that Van Der Muelen was removed for a number of managerial
deficiencies, one of which was a “laisser-faire” style of personnel man­
agement not shared by his superiors, and that King replaced him be-
cause he was viewed as a hands-on, time- and cost-sensitive manager.
As the judge rejected all arguments relating to reprisal or discrimina­
tion, and found that the Respondent had ample reason for discharging
each of the employees at issue here, it seems that the sole basis for her
inference of animus is that King may have been less popular than Van
Der Muelen among unit employees. In doing so she has turned a blind
eye to the range of considerations at play in managerial decisions, and
the likelihood that perfectly lawful choices may sometimes displease
employees, including union adherents.
3 Although Otero testified that he had seen Wink observe other em­
ployees (whom he named) with their eyes closed while at work, the
judge credited Wink’s denial and found Wink to be generally credible.
On the other hand, the judge found Otero “not to be fully credible.”
337 NLRB No. 180
1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We find insufficient record evidence to support the
judge’s inference that “the slowness of the work” during
Otero’s work shift that day would earlier “likely” have
been treated as “an extenuating circumstance” for his
being sound asleep during worktime.4 The judge based
her conclusion in large part on her conclusion that
Otero’s employment record was clear of prior discipline.
The record, and the judge’s findings, in fact demonstrate
that Otero had a previous warning for excessive use of
sick leave, a letter of reprimand for disrupting a meeting,
and a second letter of reprimand for breaching building
security. The record further shows that King reviewed
Otero’s record before deciding that he should be termi­
nated. As the judge noted elsewhere in her decision, even
though a disciplinary action might appear severe, where
the employer shows that it would have taken the action
regardless of the employee’s protected activity, the
Board does not substitute its own judgment for the em­
ployer’s as to what discipline would be appropriate.
For these reasons, we find that the Respondent has
shown that Otero, like the other alleged discriminatees,
would have been discharged even if he had not been as­
sociated with the Union. The General Counsel has con­
sequently failed to show that the discharge was unlawful.
We therefore dismiss the complaint in its entirety.5
ORDER
The complaint is dismissed.
D. Criss Parker, Esq., for the Acting General Counsel.

Mark S. Ross and Christopher J. Pirrone, Esqs. (Seyfarth Shaw

LLP), of San Francisco, California, for the Respondent.
Victor Manrique, Esq., of Los Angeles, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This case was
tried in Fresno, California, on October 31 through November 3,
2000, January 29 through February 1, March 6 through 9, and
April 16 through 19, 2001. The charges in Cases 32–CA–
17791–1 and 32–CA–17986–1 were filed against McClatchy
Newspapers, Inc. d/b/a The Fresno Bee (Respondent or the
Bee) on November 9, 1999, and February 25, 2000, respec-
tively1 by Graphic Communications International Union Local
404, AFL–CIO (the Union), and the order consolidating cases,
4 Evidence regarding the Respondent’s consideration of “extenuating
circumstances” involved an employee who overslept between shifts,
after he had been asked to work a double shift.
5 Chairman Hurtgen, in agreeing with his colleagues as to the dispo­
sition of this case, finds it unnecessary to pass on the judge’s finding
that the Union did not waive any right to ba rgain about the terminations
or reinstatements of employees Barrientez, Evans, Otero, and Washing-
ton.
1 All dates are in 1999 unless otherwise indicated.
consolidated complaint and notice of hearing was issued on
June 13, 2000. During the course of the hearing, on Febru­
ary 22, 2001, the Regional Director for Region 32 issued an-
other complaint against Respondent, which was consolidated
with the prior consolidated complaint at the hearing on March
6, 2001.2
On the entire record, including my observation of the de­
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent, a corporation, is engaged in the publication and
distribution of a daily newspaper at its facility in Fresno, Cali­
fornia, where, during the 12 months preceding June 13, 2000, it
derived gross revenues in excess of $200,000 and held mem­
bership in or subscribed to various interstate news services,
published nationally-syndicated features, and advertised na­
tionally-sold products. Respondent admits and I find that it is
an employer engaged in commerce within the meaning of Sec­
tion 2(2), (6), and (7) of the Act and the Union is a labor or­
ganization within the meaning of Section 2(5) of the Act.3
II. ALLEGED UNFAIR LABOR PRACTICES
A. Complaint Allegations
The consolidated complaint alleges that Respondent violated
Section 8(a)(5), (3), and (1) of the Act by suspending and dis­
charging employee Robert Barrientez (Barrientez) on June 15
and 18, respectively, by issuing a final warning to and discharg­
ing employee Glenn Evans (Evans) on August 18 and Septem­
ber 14, respectively, by suspending and discharging employee
David Otero (Otero) on September 27 and 29, respectively, and
by suspending and discharging employee Allan Washington
(Washington) on October 10 and 18, respectively. The con­
solidated complaint further alleges that Respondent violated
8(a)(5) and (1) of the Act on October 1 by imposing new be­
reavement leave requirements on Lupe Falcon (Falcon). The
February 22, 2001 complaint alleges that Respondent violated
Section 8(a)(5), (3), and (1) of the Act by the suspension and
final warning of employee Joseph Kloss (Kloss) and the dis­
charge of employee Jose (Joe) Aguirre (Aguirre.)
Respondent raises as affirmative defenses the arguments that
disciplinary events relating to Barrientez, Evans, and Falcon
occurred more than 6 months prior to the filing of charge
in Case 21–CA–17986, which charge delineates the 8(a)(5)
2 The February 22, 2001 complaint did not permit Respondent the
regulatory time to answer prior to resumption of hearing on March 6,
2001. Following the General Counsel’s presentation of its case, Re­
spondent presented defense witnesses only as to the allegations of the
prior complaint. Respondent was thereafter granted a continuance to
prepare its defense against the new allegations contained in the Febru­
ary 22, 2001 complaint. Proceedings resumed on April 16, 2001, at
which time testimony was completed as to the February 22, 2001 com­
plaint allegations.
3 Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, and/or unchallenged credible
evidence.
FRESNO BEE 1163
allegations of Respondent’s conduct toward those employees.
Therefore, Respondent urges, the 8(a)(5) allegations as to Bar­
rientez’ termination, Evans’ final warning, and the events sur­
rounding Falcon are barred by Section 10(b) of the Act. In
light of my findings herein, I do not find it necessary to discuss
Respondent’s affirmative defenses in depth. However, I note
that the initial charge herein, Case 21–CA–17791–1 alleges
violations of Section 8(a)(3) and (5). Discharges of employees,
including Barrientez, Evans, and Falcon are set forth in the
body of the charge, and the complaint allegations are closely
related to the allegations of the charge, involve the same legal
theory, the same factual circumstances or sequence of events,
and require similar defenses. Therefore, I find no merit in these
defenses. See Seton Co., 332 NLRB 979 (2000).
B. Background
Respondent’s press area consists of two levels: an upper and
a lower deck. The reels that feed rolls of paper to the presses
are on the lower deck; the actual printing and color work take
place on the upper deck where press operators, offside, and
color employees work.
During times material hereto, Keith Moyer (Moyer) has been
Respondent’s publisher; Helen Wainwright4 (Wainwright) has
been Respondent’s human relations manager, and Janet Owen
(Owen) has been Respondent’s production director/vice presi­
dent of production. Reporting to her are the pressroom man­
ager, night production coordinator, and assistant pressroom
manager. Prior to November 1998, Dennis Lyall (Lyall) was
pressroom manager. In November 1998, Lyall was removed as
pressroom manager and made a quality control manager be-
cause of serious employee morale proble Employees were
informed of the change. Thereafter, Lyall’s duties were to lay
out the press, and notify the pressroom of product quality
proble Gerry Carlson (Carlson) was then appointed acting
pressroom manager for a brief period. During this and a later
period of acting pressroom management, Carlson also per-
formed his job as night coordinator. During those periods
where only an acting pressroom manager existed, the overall
management of the pressroom was covered by Owen, Carlson,
and Paul Marvin (Marvin), assistant pressroom manager.5 This
coalition was sometimes called “the committee.”6 From No­
vember 1998 until May, Fred Van Der Muellen (Van Der
Muellen) was pressroom manager, followed again by Carlson
as acting pressroom manager. William King (King), became
4 Wainwright was formerly Helen Van Ryswik. She did not assume
the name Wainwright until after her marriage. However, I have re­
ferred to her herein as Wainwright.
5 The parties stipulated that Marvin was a supervisor within the
meaning of Sec. 2(11) of the Act, and Respondent agreed that Lyall
was a supervisor until his November 1998 removal as pressroom super-
visor.
6 Owen initially testified that Lyall attended some of the committee
meetings. In cross-examination, she admitted that she had test ified
before the NLRB on August 14 that Lyall served on the committee.
There is no evidence as to what Lyall’s function on the committee was
or that Lyall was a supervisor following his November 1998 classifica­
tion change. His presence on the committee is not sufficient to confer
supervisory authority, and I find he was not a supervisor within the
meaning of Sec. 2(11) of the Act after November 1998.
the pressroom manager in early September. When he intro­
duced himself to the press room employees, he said that he was
not there to be the employees’ friend, that he had a job to do.
At all times material hereto, Respondent has had in effect an
employee handbook containing written employment rules and
procedures. Respondent has also maintained a manager’s man­
ual giving direction to supervisors in handling various em­
ployment matters including discipline. A copy of the employee
handbook is given to each newly hired pressroom employee as
part of employee orientation. The employee handbook con­
tains the following provisions:
DISCIPLINE
. . . employment may be terminated at will by the employee or
The Fresno Bee at any time with or without cause and without
The Bee’s following any system of discipline or warnings.
Nevertheless, The Bee may choose, in certain cases, to exer­
cise its discretion to utilize forms of discipline that are less se­
vere than termination. Examples of such forms of discipline
include verbal warnings, written warnings, probationary ac­
tion and suspension. Although one or more of these steps
may be taken in connection with a particular employee and/or
a particular form of prohibited conduct, no formal order or
system is necessary. The Fresno Bee may terminate the em­
ployment relationship without following any forms of disci­
pline addressed above.7
IMPERMISSIBLE CONDUCT
. . . examples of conduct that may result in disciplinary action
and/or termination.
1. Insubordination, including improper conduct toward
a supervisor or manager or refusal to perform tasks as-
signed by the supervisor or manager.
2. . . . appearing for work under the influence of [alco­
holic beverages].
. . . .
18. Sleeping while on duty.
19. Abuse of sick leave.
20. Use of abusive or vulgar language.
BEREAVEMENT LEAVE
A regular full-time employee who is eligible for sick
leave will be granted bereavement leave of up to three
working days with pay in the event of a death of a member
of his or her family. For this purpose, an employee’s fam­
ily is defined to include a parent, spouse, child, sibling,
grandparent, grandchild, mother-in-law, father-in-law,
daughter-in-law, son-in-law, sister-in-law, brother-in-law,
7 Wainwright testified that the “at will” language of the employee
handbook exists for purposes of protection under wrongful terminations
cases and employment contract issues connected primarily with State of
California causes of action. Ford testified its inclusion was to prevent
the formation of an “implied in fact” contract under California law.
Respondent does not, however practice “at will” employment or disci­
pline policies. Respondent applies progressive discipline, dispensing
more stringent discipline as a particular employee problem gets worse.
Depending on the seriousness of the problem, Respondent may jump
disciplinary steps, e.g., go straight from a verbal warning to a suspen­
sion or termination.
1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
foster parent, foster child, step-parent, step-child, step-
sibling, half-sibling, aunt, uncle, niece, nephew or cousin.
SICK LEAVE
. . . .
Eligible employees may take up to ten days of inciden­
tal sick leave per calendar year . . . [which] may be used
for personal illness or injury, doctor and dentist appoint­
ments and family emergencies (such as a sick child). . . .
The Fresno Bee expects employees to utilize the sick leave
benefit only when necessary. Abuse of sick leave and
family emergency policy is prohibited and will not be tol­
erated.
DOCTOR’S CERTIFICATE
Depending on an employee’s record of attendance, a
supervisor may, at his or her discretion and with the ap­
proval of the department manager and the division direc­
tor, require an employee to provide medical certification
of absence before payment for sick leave is approved.8
At one time, Respondent had provided employees with 25
days of sick leave per year. At some point not relevant to this
matter, Respondent reduced the sick day allowance to 10 days,
telling employees that sick leave was being abused. Respon­
dent regularly addressed sick leave use with employees.9
Respondent maintains a file on each employee separate from
its personnel files called a “manager file” into which memori­
alization of conversations and oral warnings may be placed as
well as written warnings.
Following an election held in July 1998 among Respondent’s
employees, the Union was certified on August 17, 1998, as the
exclusive collective-bargaining representative of employees in
a unit of all full-time and regular part-time pressroom employ­
ees, including employees in the plateroom and utility workers.
Prior to 1992, Local 4 out of San Francisco had represented
unit employees. Local 4 was decertified in 1992. When the
Union was certified, Respondent froze the policies covering
pressroom (unit) employees.
C. Decertification Activity
Luis Cardoza (Cardoza), employed by Respondent for over
30 years, testified that he promoted a decertification effort at
the Fresno Bee within 2 months after the union election. He
initially gathered names of employees who were not happy with
the results of the election to send to the NLRB. He was aware
of the process as he and employee Leroy Lee (Lee) had been
instrumental in the decertification of the predecessor union.
Prior to collecting signatures, Cardoza told Owen what he
planned and asked if it was all right with her. She said it was
fine. Cardoza testified that after he collected a few names, he
8 Wainwright testified that Respondent’s policy regarding sick leave
was to place an employee on a “doctor’s note program” if sick leave
abuse was suspected, which required the employee to produce a doc-
tor’s note if claiming sick leave. In 1999, employees Aguirre, Kloss,
Flores, Otero, and Galleguillos and Gamboa were placed on “doctor’s
note” restriction after Van Der Muelen identified possible sick leave
abuse and requested the restrictions from human resources.
9 Cardoza testified that Respondent discussed sick leave use ap­
proximately yearly.
asked Owen if he could use a locker in addition to his own
personal locker to store the names. He was given use of a sec­
ond locker while working on decertification.10 Owen testified
that Cardoza asked her how he could decertify the Union
shortly after the election. She told him nothing could be done
for at least a year. Cardoza contacted the NLRB, and upon
obtaining instructions from the NLRB on how to proceed es­
sentially recommenced his decertification efforts in the appro­
priate time frame. Eventually, the decertification signatures
were submitted to the NLRB.
Within a week of King’s assuming his management position
at Respondent, Cardoza told him of his decertification efforts,
of the number of names collected, and of his locker use. Ac­
cording to Cardoza, King wanted to know what names had been
obtained, and Cardoza told him. Unasked, Cardoza continued
to report the decertification progress to King, including the
names of disaffected employees. Falcon, Otero, Evans, and
Barrientez did not sign the decertification petition. He also
reported to King the substance of and attendance at union meet­
ings. Cardoza talked about his efforts to Marvin and mentioned
them to Moyer. Moyer told him to keep up the good work.11
On more than one occasion, Marvin vacated his office to permit
Cardoza to use his telephone in connection with the decertifica­
tion effort.12 Cardoza said he collected names during working
hours, but it is not clear whether he did so during actual work­
ing time.
When the year following the union certification had expired,
Cardoza said to King, “I’ve got names and it’s about time for us
to file and get the heck out of this union.” King told Cardoza it
was up to him, that he could not tell him to do anything. Car­
doza filed a decertification petition in Case 32–RD–1345 with
the Board on October 26. As an unfair labor practice complaint
against Respondent was already pending, the petition was dis­
missed, subject to reinstatement, if appropriate, after final reso­
lution of the complaint allegations.
D. Suspension and Discharge of Barrientez
Barrientez was employed by Respondent from October 1977
until his termination on June 18. Barrientez was a journeyman
press operator from 1984 to 1998 when he was demoted to
offside pressman. During the 1998 union campaigns, Barri­
entez openly wore union insignia, encouraged employees to
support the Union, and attended union meetings. Prior to his
10 Owen denied that she gave Cardoza permission to use another
locker. She said, and other evidence corroborated, that some pressmen
use a second locker.
11 Cardoza’s testimony regarding his exchange with Moyer was
somewhat confused. In response to questioning by union counsel, Car­
doza said that Moyer asked him how he was doing. Cardoza thought
Moyer was talking about the decertification and answered, “We’re
doing okay.” However, under questioning by counsel for the General
Counsel, Cardoza had previously testified that in answering Moyer, he
“started in on what I was doing . . . to get the Union [out],” and that
Moyer told him to keep up the good work. I conclude that Cardoza did
inform Moyer of his antiunion activities and was encouraged to “keep
up the good work.”
12 Owen testified that employees are permitted to use the telephone
in Marvin’s office to make personal calls.
FRESNO BEE 1165
discharge, Owen was aware that Barrientez was an active union
supporter.
On June 12, Barrientez reported to work at about 8 p.m. as
an offside man on press “A” with employees John Franco
(Franco) and Otero. He testified that about 3 or 4 hours prior to
that, he had two beers with his dinner.13 During the shift, Jack
Wink (Wink), assistant night pressroom manager and Barri­
entez’ immediate supervisor, asked him if he had been drink­
ing.
Wink testified that at the commencement of the shift, as the
press crew was readying the press, Barrientez appeared to be
“kind of loud” and was calling the operator, “Johnny Boy,”
which was unusual. When Wink approached Barrientez, he
smelled an odor of alcohol. Wink said to Barrientez, “Don’t
show up for work in the shape that you’re in again.” Barrientez
told him about his beer consumption and continued working.14
According to Barrientez, as Wink walked away, he heard him
say, “This is all she needs to fire someone.”15
Franco testified that at the beginning of the shift on June 12,
he observed Barrientez acting a little strangely and being a little
loud. When they spoke together, Franco smelled alcohol on his
breath. Franco saw Wink talking to Barrientez, after which
Wink approached Franco and asked if he thought Barrientez
had been drinking. Franco said yes.
Wink testified that he did not send Barrientez home because
he was aware that Barrientez had previously had a problem
with drinking, and he did not want to get him fired. Wink
thought that if word of Barrientez’ drinking got “up front,” he
would probably lose his job. Wink testified he figured Barri­
entez could get through the shift. In other instances, Wink
testified, he would send an employee home that he thought was
impaired from alcohol.
Later, according to Barrientez, while bending over to pick up
a pile of jamming papers, his back popped, and he dropped to
his knees. He called to Otero who was coming up the stairs,
saying he had just hurt his back. Barrientez also called to
Franco who looked but said nothing. According to Franco, at
the time of the incident, he was standing about 2 feet away
from Barrientez at the conveyor belt. He saw Barrientez scoop
up papers from the conveyor and fall back. Franco asked him if
he was all right.
Barrientez asked Otero to go into the manager’s office with
him to fill out an injury report since he considered Otero to be
one of the union leaders, and employees always exercised the
right to have somebody from the Union present when going
into the company office. Wink was in the office, and Barri­
entez told him he had hurt his back and needed to go home.
Wink gave him an injury report to fill out and asked if he was
sure he couldn’t finish out the shift. He advised that employees
needed to be careful on the work floor. Wink said nothing
13 In an affidavit given to the Board during the investigative stage,
Barrientez stated he had had two beers 1 to 2 hours prior to the shift.
14 Barrientez denied that any employees laughed at him during work
or that he slurred his speech or stumbled.
15 This statement is not recorded in Barrientez’ Board affidavit.
Wink was not specifically asked whether he made the statement. Be-
cause of Barrientez’ lack of credibility, detailed hereafter, I give no
weight to this testimony.
about alcohol but asked if Barrientez could make it home all
right. Since accidents had to be reported to the front office,
Wink informed Marvin of the events of June 12 either that
night or the following day, including his suspicion that Barri­
entez had been drinking. Marvin, in turn, notified Carlson who
asked Wink and Franco to provide written statements. On June
16, Franco gave the following handwritten statement to Carl-
son:
On Sat June 1212, Robert Berrentez smelled like alcohol at
start of shift. He was loud and acting goofy. After observing
this Wink spoke to him. 15 minutes later he picked up paper
off conveyer, stumbled and fell back. Then said he hurt his
back.
After consultation with Owen and Wainwright, Carlson tele­
phoned Barrientez on the following Tuesday and told him he
was being suspended pending further investigation of the Sat­
urday night incident. According to Barrientez, he asked Carl-
son what incident he was referring to, but Carlson did not say.
Barrientez reported the conversation to union representative,
Marty Keegan (Keegan). According to Carlson, he told Barri­
entez he had information that Barrientez had reported for work
on Saturday night in an impaired condition and had fallen into
the conveyor, and he wanted his side of the story. Barrientez
told Carlson that he had had a few drinks at dinner with his
family before work. He said he did not want to lose his job,
and Carlson told him that he was suspended pending further
investigation.16 Carlson thereafter reported his conversation
with Barrientez to Owen and Wainwright.
Owen and Wainwright discussed Barrientez’ situation. They
considered his file, in which a prior alcohol problem was
documented. The documentation showed that in 1991 Barri­
entez was terminated for 5 days absence without leave. He was
reemployed under a 1-year rehabilitation program, which re­
quired him to enter an alcoholism treatment program as a con­
dition of continued employment. Owen testified that although
she did not believe Barrientez to have violated his reemploy­
ment agreement, she considered his prior alcohol abuse record
in deciding to terminate him. Owen said the length of time
between the two alcohol-related incidents did not ameliorate
the seriousness of the second incident because the Company
had already been through the substance abuse program with
Barrientez.
The following Friday, June 18, Barrientez met with Owen
and Julie Porter (Porter) from Respondent’s human resources
department. Barrientez testified that Owen told him he was
being terminated because of the preceding Saturday night inci­
dent. Barrientez denied there had been any incident. Owen
said that given his history, she had no choice but to terminate
him. Barrientez told her that termination could cause him to
lose his home. He reminded her that Carlos Mejoia and Scott
16 I accept Carlson’s version of the conversation. Barrientez’ Board
affidavit differed from his testimony at the hearing regarding the length
of time that passed between dinner and reporting to work. In his hear­
ing testimony, he doubled the number of hours elapsing between alco­
hol consumption and work in an apparent attempt t o bolster his case.
Further, I found him to be vague in recounting events and conversations
while Carlson appeared careful and candid.
1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Simmer had been caught drinking in the parking lot, and they
were still employed. Owen said their situations were different
and she was not going to talk about them.17 According to Por­
ter, Barrientez did not deny Respondent’s charge that he had
come to work under the influence of alcohol but pleaded for his
job and said it would not happen again. Owen testified that
when she told Barrientez of the seriousness of coming to work
under the influence of alcohol, he said he was sorry and that it
would never happen again.18
Wink received a letter of reprimand dated June 23 for violat­
ing company policy on June 12 by, inter alia, allowing an em­
ployee to continue working while visibly intoxicated.
Other employees who worked on June 12 gave their opinions
of Barrientez’ condition. Otero testified that he observed Bar­
rientez working on Saturday, June 12, that he appeared to be
working normally, and that no one was laughing at him. In
Otero’s opinion, Barrientez was not drunk. Washington testi­
fied that he spoke to Barrientez in the locker room on June 12
and neither smelled alcohol nor believed he was intoxicated.
Evans testified that he spoke to Barrientez for 10 to 15 minutes
during work on June 12 and discerned no evidence of alcohol
use or impairment. Falcon testified that although he worked on
a different floor than Barrientez on June 12, he observed Barri­
entez during work that night. Barrientez appeared to be work­
ing normally, and Falcon smelled no alcohol on his breath al­
though he stood close to him at the beginning of the shift.
Employee Leo Galleguillos (Galleguillos) testified that on
New Year’s in 1975, employee Jerry McPherrin was drunk at
work; the foreman told him to sleep if off, and the other em­
ployees covered for him. In the late 1980s, Galleguillos was
present when Lyall, then the man-in-charge, told employee,
Bob Cougle who had been drinking, to sit down and not get up.
Neither employee was disciplined. There is no evidence that
Respondent’s upper management was aware of these incidents.
E. Warning to and Discharge of Evans
Evans was employed by Respondent from October 31, 1990,
until his termination on September 14. He testified that he
attended union meetings off Respondent’s premises both before
and after the union election. He was friends with Otero, Wash­
ington, and Aguirre whom he considered to be among the most
open union supporters in the preelection period. Owen testified
that Evans was very “vocal” with her when she was on the
pressroom floor and volunteered that he did not want anything
to do with the Union.
Evans testified that he was called “Lightening,” “Flash,” and
“Speed” because of his proficiency as a plate burner, and he set
the standard to which other plate burners were held. He trained
other employees and received an “Above and Beyond the Call
of Duty” award in February. Marvin testified that in July, there
was management discussion of giving Evans a pay increase.
17 Regarding Carlos Mejoia and Scott Simmer, Carlson testified that
security caught them in the parking lot with open alcohol containers,
and both were suspended.
18 The testimonies of Carlson, Owen, and Porter consistently report
that Barrientez did not deny being under the influence of alcohol on
June 12. I accept their versions of the conversations.
According to Evans, in June 1998 Owen told him that the
Union would not be a good thing for the pressroom, that it
would just tie up the way they did things, indicating raises.19 In
August, Owen approached Evans and told him he had been
doing a good job, and Respondent was going to promote him.
Owen went on to talk about the results of the election, the
closeness of the vote, and said the Company could not decide
who voted what, but there would be consequences.20 During
that same month, Evans was asked to go to Owen’s office. She
complimented him on his work and said there was still some
type of promotion and a raise on the table. She said she would
try to get him an apprenticeship. Evans said that would be fine,
but all he really wanted was peace, referring to the animosity
and controversy that had existed in the pressroom since the
union election. Later that same month, Owen told Evans that
“they” had denied a raise for him. Owen testified that Evans
approached her seven or eight time requesting more money or
an apprenticeship, but that she never initiated any such discus­
sion. Owen denied offering to help him get more money or a
better job.21
Owen testified that in July, Evans was absent from a Satur­
day day shift without prior notice to Respondent. She talked to
him about his “no-call, no-show” and the strain his absence put
on the department. Evans discussed the problems he had as the
single parent of a baby. Owen said she would overlook the
absence, but it was not to happen again. According to Owen,
between that conversation and August 18, Evans missed five
more shifts.
Evans testified that on about August 10, he developed a pros­
tate infection and missed 2 to 3 days of work. He called in to
work on two occasions, speaking with Marvin once, and leav­
ing a voicemail message the other time. Evans told Marvin that
he was under a doctor’s care and would call in each day until he
returned. When Evans returned to Respondent’s premises on
August 13, Marvin told him Owen was upset about his taking
days off. Evans gave his doctor’s note to Marvin. Later, Owen
told him, “Glenn, you’ve missed so many days, 13 days, and if
you miss any more we’re going to terminate you.” Evans told
her she was being unfair because the preceding year, he had
only missed a couple of days, but he had become responsible
for a newborn baby daughter on January 29, and the duties of a
single parent accounted for his missed work in 1999.
19 Under cross-examination, Evans admitted that his Board affidavit
did not contain an account of such a conversation.
20 Under cross-examination, Evans admitted that his Board affidavit
did not contain an account of this conversation either.
21 I cannot credit Evans’ testimony. He made no explanation as to
why the conversations were omitted from affidavit testimony given
much closer to the events than his hearing testimony, and his memory
was inconsistent. Thus, while remembering the above conversations in
some detail, he also testified under examination by union counsel that
although he asked Owen how she felt about the Union in general, he
could not recall her response. Those inconsistencies coupled with his
manner and demeanor in testifying undercut his credibility so that I
cannot rely on his testimony where it conflicts with that of other wit­
nesses.
FRESNO BEE 1167
On August 18, Carlson called Evans into the pressroom of­
fice and gave him a “Final Warning.”22 Evans refused to sign
the warning as he felt Respondent was treating him unfairly
because of his union sympathy and because they were disre­
garding his family situation. According to Evans, he told Carl-
son that he believed the warning was political because of his
union sympathy; Carlson did not answer. Carlson testified that
after reading part of the warning notice, Evans returned it and
accused Respondent of engaging in a conspiracy to get him.
Carlson repeatedly asked him to read the warning. Evans
wanted a copy, but Carlson refused, as Evans would not sign
it.23
On Thursday, September 2, Marvin asked Evans to work an
unscheduled night shift the following day, September 3, be-
cause another employee was ill. Evans did so, working from 5
p.m. until 12:45 a.m. During the shift, King, who had been
pressroom manager for about 2 weeks, told Evans that he
would be working alone the remainder of the night and to do
the best that he could. King testified that because of being
shorthanded in the plate room, he arranged with Jeff Gledhill,
supervisor (Gledhill) to borrow employee Dan Hoard (Hoard)
from prepress. Gledhill asked that Hoard be used as little as
possible, as prepress needed him. King told Evans of the staff
shortage and asked him to do the majority of the work. Evans
said he would and, according to his testimony, worked the shift
without a meal break. Evans testified that during the shift, at
about 10:30 p.m., Hoard began assisting Evans in burning
plates. At about 12:30 a.m., Evans, who was scheduled to be-
gin vacation the next day, asked Hoard if everything was under
control and if it was okay for him to leave. Hoard said it was
no problem. Evans then left at about 12:30 or 12:45 a.m. He
did not check in with Marvin before leaving since employees in
the plate room rarely worked full shifts and could agree among
themselves to leave early as long as someone remained until
everything was done.24
Hoard testified that on September 3, he observed Evans
working inefficiently. He appeared to be burning plates in a
lackadaisical manner and putting plates in roughly, which ne­
cessitated pounding out the resultant bends. Hoard testified
that he did not recall Evans saying anything to him when Evans
left at about 12:40 a.m. He denied that Evans had asked if eve­
rything was in control before he left. Hoard continued to burn
remaining plates until his shift ended at 1:30 a.m. Hoard re-
22 Aguirre received a final warning regarding attendance at the same
time, having had a prior warning in January. Meyers received a warn­
ing, but not a final one, as he had not had any prior warning.
23 A one-page document entitled “Final Warning,” which had been
obtained from records subpoenaed from Respondent was marked as GC
Exh. 14 and shown to Evans. Although Evans agreed that the subject
of the warning was his attendance, he insisted that GC Exh. 14 was
different from the warning notice he had refused to sign on August 18.
No evidence was adduced that any other form of the warning notice
existed, and it was received as R Exh. 44. Carlson identified the docu­
ment as the one given Evans. I accept Carlson’s testimony.
24 Marvin essentially corroborated Evans’ assertion, testifying that
there was no clear rule about when an individual could leave. Quitting
time was based on when the employees actually got the newspaper and
their prework done. The press operator “will then kind of determine
‘okay, the work is done,’ and then [employees will] go.”
ported to April Bell (Bell), night prepress supervisor, what he
observed of Evans’ work that night, and also told her that he
had done 80 percent of the plate burning while working with
Evans.25 Bell sent an email message dated September 4 to
Gledhill stating, in part, “Dan Hoard spoke with me . . . about
Glenn’s ‘help’ in the plate room. Dan said he didn’t keep offi­
cial track, but that he burned about 80% of the plates. We had
a large pre-run along with a big paper. Glenn spent a lot of
time doing ‘busy work’ according to Dan. Looking busy, but
not really doing anything. Then Glenn left at 12:40 . . . so Dan
had to stay over his t ime in order to burn the rest of the plates.”
The following Tuesday, September 7, Evans returned to
work as usual. On that same day, Gledhill forwarded Bell’s
email message concerning Evans to King. Upon reading the
message, King looked at Evans’ file and reviewed several
documented disciplinary actions and an email from Brian
Rathburn (Rathburn), night prepress supervisor, to Owen dated
January 18 that accused Evans of leaving work before the plate
burning was finished.26 King spoke to both Hoard and Bell
about the September 3 events.27 After consulting with Owen
and Wainwright, based on Evans’ conduct of the preceding
Friday night and his previous work history, King decided to
terminate Evans unless he provided a good excuse.
According to Evans, on Thursday, September 9, Marvin ap­
proached Evans at work and told him, “Glenn, you know it’s a
conspiracy.” Evans testified that, believing Marvin was refer-
ring to Respondent’s singling out union supporters for discipli­
nary action and termination, he said he knew and asked why
Marvin had to start him thinking about it. Marvin did not reply.
Marvin specifically denied making such a statement. He testi­
fied that in the approximately 2 years prior to his termination,
Evans expressed thoughts that somebody—the Government, the
Company, the system—was watching him and that there might
be video cameras in the plate room. Marvin said that although
Evans might have said there was a “conspiracy,” Marvin never
agreed with him at any time. I accept Marvin’s testimony over
that of Evans.
Wainwright and Owen testified that King consulted them
about the discharge of Evans, but that he made the decision.
King had Evans’ termination papers prepared and on Septem­
ber 14 asked Marvin to bring Evans to Owen’s office. The
25 Counsel for the General Counsel contends that Hoard wanted to
take Evans’ place as pressman and was thus motivated to slant his
testimony. There is no evidence of that or of any other motive that
would prompt Hoard to testify falsely. As heretofore and hereafter
detailed, I find inconsistencies in Evans’ testimony. Therefore, I credit
Hoard’s testimony that Evans did not ask him if the work was under
control and that he left before the work was finished.
26 Owen testified that in January she received an email message from
Rathburn stating Evans “went home after first run and he said that
Jeffery was going to burn plates. I talked to Jeff and he said that he is
not going to burn plates but he just left for lunch . . . now it is 1:00 and
still nobody to burn plates.” Owen asked Van Der Muelen to confer
with her about the incident. He confirmed what had happened, but
Owen was unaware of what, if any, discipline was given Evans over the
incident. The email remained in Evans’ manager file.
27 King testified that he considered that Hoard may not have been
accurate in saying he had done 80 percent of the work, so he inquired
of Bell, as he felt a supervisor can tell who is working and who is not.
1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
termination letter, dated September 13, reads, in part: “This
decision has been made due to your past work history as well as
your performance on Sept. 3, 1999. You have five other previ­
ous incidents including a final warning letter on Aug. 18,
1999.” Concerning his termination, Evans testified that King
said, “Glenn, you’re being terminated from the Fresno Bee
because of your work on September third.” Under examination
by union counsel, Evans said he might have asked what specific
problems Respondent had with his performance on September
3, but he couldn’t recall. According to Evans, he said, “I don’t
understand. What are you, some kind of hit man? I told you
that I would do the best that I could.” King said that apparently
it wasn’t good enough. Evans refused to sign the termination
letter and left, saying, “Well, I don’t understand; I’m going to
see my doctor.” The meeting lasted about 5 minutes. Accord­
ing to Evans, King did not explain what the problem was with
Evans’ work on September 3, and no other member of man­
agement had previously asked for Evans’ version of that night’s
events.
King testified that during his meeting with Evans, he sum­
marized the information he had obtained regarding Evans’
work on the night of September 3 and asked for Evans’ side of
the story. Evans started yelling that King was a hit man, that he
was feeling faint and wanted to go see his doctor. According to
King, “It wasn’t going anywhere, so I terminated him, tried to
give him his paperwork; he wouldn’t take it.” Marvin testified
that at the meeting with Evans, King reminded Evans that he
had asked him to do most of the plate work because Hoard was
needed in prepress, that Evans had not followed directions and
had left before Hoard. King asked Evans for an explanation of
what had happened, but Evans did not respond except to say
that King had not talked to him until 45 minutes into the shift
and that he had left at his normal time. Evans’ voice was loud
and he paced the office. Marvin was not clear as to what Evans
said in response to King, but he recalled Evans saying he
needed to see his doctor.28 King testified that had Evans of­
fered a good explanation, he would have torn up the termina­
tion letter.
F. Suspension and Discharge of Otero
Otero worked for Respondent from January 1977 until his
termination on September 29. He was at that time a journey-
man pressman. In March 1998, Otero who had been shop
steward under Local 4 contacted the Union about organizing
the unit employees. He thereafter solicited authorization cards,
openly wore union insignia at work, distributed union literature
28 Evans expressed disdain of King’s competence, testifying, “The
guy’d only been there two weeks . . . it’s quite a long time. He knew a
lot. . . . I knew more about the way the operat ion was run and how to
get the paper out . . . [w]e know why King came there.” In addition to
earlier stated concerns with Evans’ testimony, I found Evans to be
vague and sometimes hostile in testifying, which did not impress me as
to his frankness. Moreover, his testimony in this instance was inter­
nally inconsistent. He testified that King did not give him reasons why
his work on September 3 was not satisfactory, and yet his response—“I
told you that I would do the best that I could”—clearly indicates he was
told what the deficiencies were. I credit King and Marvin’s test imony
where it is inconsistent with that of Evans.
in front of the Bee and its primary advertiser, served as a union
observer during the representation election, testified in a prior
NLRB case in August, attended union rallies in front of the
Bee, carrying a banner reading “Bargain Now,” and served as a
member of the bargaining committee. King was aware that
Otero was a supporter of the Union.
In June, prior to the union election, Lyall told Otero that he
felt Respondent had given employees a fair shake, and that they
didn’t need a union. Otero answered that Respondent had made
promises after the 1992 decertification that employees would
be treated better, but it wasn’t happening. In July, prior to the
election, Marvin asked Otero to give the Company a chance,
saying that he felt employees weren’t being fair to Respondent,
that if things were wrong, they would be corrected. Prior to the
election, Wink told Otero that bringing the Union in would
open up a whole “can of worms.” On various occasions, Owen
asked Otero to give the Company a chance. In late June 1998,
Moyer, apparently in response to Otero’s complaints that
Moyer was speaking only to certain employees, said that if he
felt Otero was going to go for the Company that he would talk
to him.
Otero also testified that Respondent’s management, includ­
ing Gary Pruitt (Pruitt), Respondent’s CEO, and Ray Steele,
held a meeting with employees on July 21, 1998. According to
Otero, during a separate conversation that day, Steele said he
was disappointed that Otero had not alerted him to employee
complaints with which he could have helped. In the general
meeting, Otero recalled Pruitt saying he was disappointed that
it had come to an election and that employees would not give
the Company another chance. Marvin asked Otero to tell the
Union to give the Company 60 days, and then they could bring
the Union back in. After his recollection was exhausted, in
response to a leading question, Otero recalled that Pruitt told
employees that if they voted the Union in, the Company would
play hard ball.29
Otero testified that in the last couple of years, both Marvin
and Wink had told him that he was one of the best reel men in
the reel room. He said he was usually assigned to “tough”
reels.
On Saturday, September 25, Otero worked, as usual in the
reel room. During the morning, the press repeatedly stopped
operating. When the presses stopped, Otero and coworker,
Galleguillos checked the reel units, determined they were func­
tioning correctly and that the problem was upstairs in the press
area. Otero then sat down on a chair by the staircase near “A”
29 Concerning the meeting or meetings, Otero’s test imony was
somewhat confused, and often conclusionary. It was not clear whether
the statements Otero recalled were made in an informal meeting in
which members of management spoke to him alone or in the general
meeting. Regarding one statement, he in itially recalled Pruitt saying
there would be “hell to pay for,” but upon counsel for the Acting Gen­
eral Counsel’s prompting, “Now, as best you can recall, what phrase
did he use,” he changed his testimony and recalled that Pruitt had said
the Company would “play hard ball.” On redirect examination, he said
Pruitt had said the company would play “hard ball to get a contract.”
Therefore, I find Pruitt did not say that there would be hell to pay or
any words to that effect.
FRESNO BEE 1169
press.30 When he returned from his lunchbreak at noon, the
press was not running, and after checking the reels, Otero sat
down until the press began functioning. Later that afternoon,
when the press again stopped, Otero brought a stool to the chair
he was using and elevated his feet. Galleguillos went upstairs
saying he would see if help were needed. When Galleguillos
called downstairs that the problem wasn’t with the reel room,
Otero closed his eyes off and on for 20-second periods while
waiting for the press to start up. When a bell went off signify­
ing the press was about to start, Otero got up, checked the two
reels for which he was responsible, then resumed sitting.31 He
testified he would not be required to check the reels again until
a glue roll (called the paster) “fired.”32 The firing would be
signaled by a horn, and at that time, the reel workers needed to
watch the reels to see that there was no slack and that the tim­
ing was accurate. At some point, King, a woman, and two
children entered the reel room. King’s visit was unexpected.
Normally no manager or supervisor was at work on Saturdays,
and the press operator was responsible for the press run. Otero
continued to sit. Otero explained to the children that the paster
was about to fire. After the paster fired, Otero removed the butt
cord, put in a new roll, and made up the next paster. King said
nothing to Otero.
King testified that he brought his wife and children to the
pressroom on Saturday, September 25 at about 10 to 10:30 a.m.
to look at the robot system (AGV). When he arrived in the
pressroom, King observed Otero in a reclined position with his
head back and his feet on a rag can. His mouth was open, his
eyes were closed, and King believed he was “dead asleep.”
Galleguillos who was present when King arrived, immediately
left the pressroom,33 but King spoke to Kloss who was in the
pressroom for a minute or so during which time Otero main­
tained the same posture and appeared to continue sleeping.34
According to King, the AGV carrying the paper came through
the pressroom, beeping, and Otero continued in his same posi­
tion. King walked to Otero and stood directly over him for 30
to 45 seconds. Otero opened his eyes, stood up and went to one
of the reels. King did not speak to Otero as it felt it inappropri­
ate to do so in the presence of his family.35
30 Otero testified that it was customary for employees in the reel
room to sit down after all preparation was completed. Employees could
read during that time, periodically looking up and making sure the reels
were properly running and listening for abnormal sounds.
31 In cross-examination, Otero said that he also had his eyes closed
and his feet elevated while the press was running.
32 The paster glues an expiring roll of paper to a full roll.
33 In rebuttal testimony, Galleguillos test ified that he first saw King
as he descended the stairs into the pressroom. Galleguillos checked his
reels, but the press did not start up for 5 to 10 minutes later. He did not
see King speak to Kloss.
34 In rebuttal, Kloss testified that although he waved to King, he
never spoke to him. Kloss said that Galleguillos was seated on the
same side of the press as Kloss. Kloss could not see Otero as a stair-
case divided them.
35 I accept King’s testimony. Otero initially testified that he first no­
ticed King directly in front of him, facing away from him and looking
at the press. He then said that he saw King and his family walk into the
area of the reel room where he was sitting. On cross-examination,
Otero testified that he did not know how long King was in the press-
King testified that on the following Monday, he discussed
what he had seen of Otero with Owen and Wainwright. Owen
asked King to check with other supervisors to determine if the
problem was prevalent. King spoke to Marvin and Lyall, ask­
ing whether any employee had been disciplined for sleeping.
Both denied seeing anyone asleep although Marvin said he had
seen employees nodding while sitting. King also spoke to
Wink who told him that a couple of months previously he had
observed Otero sleeping at work with his feet up on a rag can
and that he had had to kick the chair to wake him, telling him
that he could be fired for sleeping.36 King asked Wink to make
a note of the incident; Wink made a notation on the back of the
personnel calendar. King also checked Otero’s file, reviewing
a warning for excessive sick leave use, dated January 7, a letter
of reprimand dated March 2 which referred to disruption of a
sexual harassment training meeting, and a letter of reprimand
also dated March 2 regarding a breach of building security by
leaving visitors unattended in the tearsheet room. King in-
formed Owen and Wainwright of the results of his investigation
and that he wanted to terminate Otero, to which Owen subse­
quently agreed.
Otero worked on Sunday, September 26 without incident.
On Monday, September 27, Otero reported for work at 6:30
p.m. He was met by Marvin who asked him to go to the office.
There, Marvin told Otero he was suspended because King had
caught him sleeping. Otero testified that he denied sleeping,
and Marvin told him to report the next morning at 9 a.m. to see
King. According to Marvin, Otero admitted sleeping, saying it
wasn’t his fault he had fallen asleep; it was Washington’s for
dragging his feet.37
On the following morning, September 28, Otero met with
King and Marvin, and King told him he was suspended indefi­
nitely for sleeping on the job, and Respondent would get back
to him following its investigation. Otero testified that he de­
nied sleeping, but King insisted he had been “out” and said that
he had been brought in to do a job, and this was how the job
was going to be; if employees didn’t like it, that was just too
bad. King testified that when asked why he was sleeping,
Otero said that Washington was dragging his feet, the running
was taking too long, and he got sleepy and fell asleep. Accord­
ing to King, after this meeting, but before his decision to termi­
nate Otero, Marvin showed him a written record of his conver­
sation with Otero. The record reads, in part: “Dave: . . . You
room before he opened his eyes. He also testified that his eyes were
open when King entered and that he closed them thereafter, and he
testified that when he became aware that King was there, the press was
running “full tilt.” These inconsistencies erode Otero’s credibility. I
do not find it necessary to resolve credibility between King’s testimony
and the rebuttal test imonies of Galleguillos and Kloss as the latter do
not directly bear on whether Otero was sleeping at work.
36 Wink corroborated King’s account of their conversation. He also
testified about finding Otero apparently asleep in the reel room in June
while the presses were operating. According to Wink, Otero was
stretched out in a chair, with his head back, mouth open, and his eyes
closed. Wink bumped Otero’s foot and said, “Hey, that’s one of the
things you could lose your job over.”
37 I credit Marvin’s testimony over that of Otero. Although his tes­
timony had to be refreshed by memoranda he had made at about the
time of the events, he was straightforward and appeared candid.
1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
get tired, you come in and want to get going, but [Washington]
just drags his feet . . . we need leadership, the crews are getting
away with to [sic] much. . . . Every body has slept down here.”
In parentheses, after his name, Marvin added: “(Dave did admit
to me that he was sleeping, but tried to blame it on Allen for
taking to [sic] long. He seamed [sic] more upset at Allen than
worried about his job.)” According to King, he then told Owen
of the meeting, that Otero had not denied sleeping and blamed
it on somebody else. King told her that based on that and
Wink’s information, it was his decision to terminate Otero.
King then prepared the termination letter.
Responding to a phone message, Otero returned to Respon­
dent on Wednesday, September 29, at 2:30 p.m. Again he met
with Marvin and King. King informed Otero he was being
terminated for sleeping while at work the previous Saturday.
Otero testified that he protested, saying he was just resting his
eyes, and pointing out that two employees had just gotten
caught with alcohol on their breath and beer cans in their hands
in the parking lot and had only gotten a 3-day suspension. King
said that he had made his decision. Otero said that Wink had
his eyes closed all the time. King said he didn’t want to hear
about that. Otero said his termination was because of his union
activity, and King denied that union activity was any part of it.
According to King, he told Otero that because he had been
sleeping, he was going to be terminated. Otero did not respond
to that statement. He and Otero talked about his 401(k) plan
and about the belongings he kept in a second locker. Marvin
essentially corroborated King’s testimony. He testified that he
helped Otero take his personal property to his truck in the park­
ing lot, and Otero again said it was Washington’s fault.38
The General Counsel presented evidence of other employees
caught apparently sleeping who were not terminated. Otero
testified he has seen employees Ernie Felix, Wink, Howard
Garris, Leroy Lee, and Kloss with their eyes closed while at
work, and that Ernie Felix had slept in the quiet room while
pulling a double shift. According to Otero, he had seen Wink
observe but ignore the apparent sleeping. Wink denied observ­
ing employees sleeping or with their eyes closed and doing
nothing about it. He said that employee Ernie Felix had, in the
past, worked double shifts, and had slept between shifts, asking
other employees to wake him. Sometimes people forgot to
wake him, and on a couple of occasions he arrived late for his
second shift because he slept into the starting time.39
38 I accept Marvin and King’s versions of the interview with Otero.
As set out before, I find Otero not to be fully credible.
39 I found Wink to testify in a straightforward, honest manner. He is
no longer employed by Respondent and has no apparent self-interest in
testifying falsely. It is clear that as a supervisor, he tended to be silent
about employee conduct that might result in discipline. That trait mili­
tates against his being willing falsely to accuse employees of miscon­
duct. Further, there is no evidence he bore animus toward any em­
ployee for Union or any other activity. I consider him to be a neutral
witness and accept his testimony. I also note that although Otero testi­
fied of employees who closed their eyes while working, he did not
name them to King at his termination. It is reasonable to conclude that
if Otero had, indeed, thought himself treated differently than other
sleeping employees, he would have pressed the issue at that time.
Kloss, employed by Respondent since 1981, testified that
about 10 years ago, when working a double shift, he lay down
on rolls of paper with his eyes closed. Lyall nudged him and
said, “Joe, if you’re going to sleep, would you sleep in your
chair over there.” Kloss also testified that about 4 or 5 years
prior to the hearing, he was coming into work sick, and sat in a
chair with his feet up and his eyes closed. Although Marvin
saw him doing it, he said and did nothing. Kloss was never
disciplined for sleeping. Kloss testified that the only employee
he could recall seeing with his eyes closed at work was Otero,
and he had seen that on as many as fifteen occasions. Kloss
recalled seeing employee Howard Garris in the reel room in
1999 with his eyes closed. He did not know if any supervisor
saw him. In his affidavit given to the Board, Kloss stated that
Respondent did not permit sleeping on the job.
Galleguillos testified that he has observed employees with
their eyes closed: Louie Segura in 1977 and Jerry McPherrin in
the 1980s. He has not noticed employees with their eyes closed
when working days.
Carlson testified that in his 8 to 10 years of working nights,
he has not observed employees sitting with closed eyes or
sleeping. Marvin testified that on two or three instances he had
seen employees with their eyes closed but clearly not asleep as
they opened their eyes after a few seconds. They were not
disciplined. Under cross-examination, Marvin testified that the
only employee he could specifically recall with his eyes shut
was Otero, 5 or 6 years prior to the hearing during a night shift.
On that occasion, Marvin kicked Otero’s foot as he passed by
him. Otero was not disciplined.
G. Suspension and Discharge of Allen Washington
Washington worked for Respondent from August 27, 1990,
until his termination on October 18, 1999, at which time he was
employed as an offside press operator. Washington contacted
the Union at the request of other employees to seek representa­
tion in 1998. He openly wore union insignia during the cam­
paign and after the election, distributed union literature or
handbills in front of Michaels Chevrolet and Respondent, at-
tended union rallies at both premises, served as a union ob­
server at the election and on the Union’s negotiating team, and
attended a prior NLRB hearing in August. Owen said she knew
him to be an active union supporter. Washington said that no
member of management commented on his union activities.
Washington testified that prior to the July 1998 election at a
30–45 minute meeting of employees, Pruitt said that if there
was going to be a union in the Fresno Bee, Respondent was
going to play hard ball, that he didn’t want any union inside the
Fresno Bee, and he was very surprised to hear that the Union
was being brought into the pressroom.
Sometime in September, Washington asked to be taken off
double shifts on Saturday. Marvin testified that on Saturday,
October 2, he received a call at home from Washington who
had seen the work schedule and was upset about having been
taken off Saturday mornings. He wanted to be put back on
Saturday mornings and taken off Saturday nights. According to
Marvin, Washington was angry and raised his voice, but
Marvin refused to change the schedule, telling Washington it
was just for 1 week, and he and King would take a look at it.
FRESNO BEE 1171
Marvin told Washington that if he were a team player he would
work with Marvin on it. Washington said it was his right to
have the schedule as requested. Marvin documented the con­
versation and provided King with the memorandum. In early
October, Washington was removed as press shift man-in-
charge. King testified the action was based on the press re-
ports, which showed excessive down time, overtime, and prob­
lem resolution time compared to other reports.
Washington testified that on Saturday, October 9, he re-
ported for the night shift. He perceived that the press had not
been made fully ready for his shift by the earlier crew. On the
following Monday, October 11, King appeared at work during
Washington’s shift. Washington went to King’s office to in-
quire why the day crew had not made the press ready for the
previous Saturday night. Dave Thompson was present, but
Washington asked to speak alone with King on a personal mat­
ter, and he left. According to Washington, he asked King why
the press wasn’t made ready. King told him that he should not
worry about the press but about his own job performance.
Washington told King that he wasn’t there to discuss his job
performance, but why the press wasn’t made ready because of
the extra work the Saturday night crew had had to do. King
said that Washington’s performance had been poor, that he had
more downtime than anyone in the pressroom. Washington
asked King to compare his down time with that of other em­
ployees. King told Washington not to tell him how to do his
job. Washington replied that he was not trying to tell King how
to do his job, pointing out that King had not been at Respondent
long, and if he would look into it, he would see that all press
operators have down time. King pointed his finger at Washing-
ton and said that he should not be worried about others’ down-
time, but that he needed to worry about his own bad job per­
formance. According to Washington, both he and King spoke
with raised voices, and at some point, King told Washington he
could fire him unless he quieted down.40 Washington told King
that was a bunch of bulls—. King told him his language would
not be tolerated. Washington immediately apologized. King
criticized Washington for an incident in which King had to
burn plates that Washington should have taken care of. Ac­
cording to Washington, this reference was to an incident occur-
ring about a week prior when King had unsuccessfully at-
tempted to burn a plate. Washington asserted the problem oc­
curred due to a staffing shortage. Washington also recalled that
King made reference to an earlier conversation with Washing-
ton that he did not like. According to Washington, 2 weeks
earlier, he was talking to King and jokingly told him not to sell
his house. In that conversation, Washington was making refer­
ence to the previous pressroom manager, Van Der Muelen, who
had sold his house to move to Fresno but had been fired after a
few weeks. King answered that he would be there longer than
Washington thought. Washington told him the earlier conver­
sation had been a joke, that he hadn’t meant anything by it.
Washington said that he also complained that his pay and bene-
40 Washington initially testified that King spoke to him in a “raging”
voice. Later, he testified that he and King “exchang[ed loud] tone of
voice,” which I take to mean that both spoke with equal loudness and
intensity.
fits were not in accord with the work he was doing. King said
he would look into it. At the conclusion of the interchange,
Washington apologized again for his language, and for getting
into a heated argument without resolving anything. He asked to
be excused to return to work. Washington specifically denied
saying he was tired of “this f— sh—” or “. . . this f— sh— has
got to stop.”
King testified that prior to being hired by Respondent, he had
learned of Washington from Owen. In the course of her re­
cruitment discussion, Owen told King that Washington was
somewhat of an intimidator in the pressroom, that some em­
ployees were scared of him, and she wanted King to know what
he was stepping into. King said he was not aware Washington
was a union supporter until he arrived at the Fresno Bee. Owen
testified that she discussed problem employees with King when
he was hired. Washington was at the top of her list as he had
used profanities with her both before and after the union elec­
tion.
King testified that his problems with Washington began
shortly after he assumed the pressroom management. He said
Washington treated him with disrespect from the beginning.
On August 28, the first Saturday after he began at the Fresno
Bee, Washington came into his office at work and introduced
himself. After some chitchat, King asked him about the previ­
ous Saturday’s press report where Washington had noted not
having enough workers with resulting safety issues.41 King
said, “I’ve got some problems with your press report here . . .
can you explain it to me?”
Washington replied, “It’s self-explanatory, read it.” King
said he had read it, and he thought Washington was confusing
manning issues and safety issues. According to King, Wash­
ington said, “Okay,” turned, and walked out. King felt Wash­
ington had been disrespectful. Later that day, King walked into
the quiet room. Washington was present and said to him, “See
this f— sh—, we need a plate burner; we haven’t got a plate
burner; I need a plate.” King asked if one of the men down-
stairs could burn the plate as the presses were then stopped.
Washington said, “No, they’re too busy.” King again consid­
ered Washington’s manner and words to be disrespectful. King
said he would burn the plate himself and left. As he did not
have experience with Respondent’s system, King acknowl­
edged he “didn’t know what [he] was doing,” and an employee
from the reel room offered to burn the plate.
King testified that at an evening shift during the following
week, he walked toward the quiet room where four to six em­
ployees, including Washington, were seated. When Washing-
ton saw him, he turned to the employees and said, “Here comes
the boss man; everybody better shut up.” King considered
Washington’s tone and words to be offensive. On a later occa­
sion, when King entered the pressroom, Washington began
singing a “cattle-driving song . . . like ‘Keep Those Dogies
Moving.’” King considered that to be a disrespectful reference
to pressroom employees being overworked. King did not then
take issue with Washington as he felt he was being baited and
that it was best not to respond.
41 According to Marvin, Washington constantly complained about
the reduction of the crew on Saturday day shifts.
1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
According to King, while talking to several employees in the
quiet room a couple of weeks after Evans’ termination, Wash­
ington, broke into the conversation and asked, “Have you sold
your house in North Carolina yet?” King said he had not.
Washington said, “Well, don’t you think you better hold onto
it; the last guy didn’t make it.” King understood Washington to
be referring to Van Der Muelen who had been terminated.
King took it as a threat the employees would run him out of
town. King replied he was not going anywhere. Washington
looked around at the rest of the group and said, “It must be nice
to be that confident.”
At some point, King looked at Washington’s manager file.
In the file, King found various writeups, a memo from Owen
about Washington being disrespectful, and a final warning.
The final warning was from Van Der Muelen, dated February
10, and cautioned Washington about, inter alia, use of “abusive
language and . . . derogatory comments directed at . . . employ­
ees . . . [which] verbal harassment is a serious matter and one
that the company does not and will not take lightly.” Washing-
ton was reminded that the warning was his second in 6 months
related to work performance and that “unless you correct your
behavior and conduct yourself properly . . . your employment at
The Fresno Bee will be terminated.”42
On October 11, King testified, he was in his office talking to
Thompson. Washington asked if he could speak to King alone.
When Thompson left, Washington said that the “f— sh— ain’t
right. Franco didn’t do his make ready.” Washington said that
on the previous Saturday night, he had found the work undone,
and that if it had been [Washington], he’d have hell to pay.
King told him to stop cursing, which he did. Washington told
King that if he knew how to do his job, he would know that
Washington was a good operator. King told him that his press
reports did not look good and said, “I’m also frustrated by . . .
how you treat me as a supervisor . . . it’s very disrespectful.”
Washington said that Owen, Carlson, and Lyall had not given
him a chance, and King told him that he seemed to think it was
everyone’s fault but his own and that he needed to figure out a
way to gain the respect of his supervisors. King told him the
press problems he had were not of as much concern to Respon­
dent as was the amount of time it took to correct them. King
also told Washington that he was tired of his nasty mouth and
taunting, specifying the cattle-driving songs and the “boss man”
incident. During the course of the meeting, according to King,
he decided that he wanted to fire Washington because of his
lack of respect and unconcern about helping the group.
King informed Wainwright and Owen that Washington had
been verbally abusive and that he wanted to terminate him.
According to Owen, King was upset about Washington’s ask­
ing him in front of the press crew whether he had sold his home
in South Carolina and felt that Washington also baited him by
42 Received into evidence were a memo to Washington from Carlson
dated August 18, 1998, regarding Washington’s having permitted an
entire crew meal break and the final warning from Van Der Meulen
dated February 10, 1999. The final warning also dealt with Washing-
ton’s failure to assist an apprentice. In his testimony, Washington
denied refusing to help the apprentice, saying he had explained he was
too busy with his own work. Washington did not deny that he had used
abusive language on that occasion.
singing “cattle herding” songs when King appeared on the
pressroom floor. The managers discussed Washington’s past
warnings.
About 2 days later, according to Washington, King tele­
phoned him and told him he was suspended until further notice.
Washington asked for what reason, and King said he would
rather not get into it.43 According to Washington, King gave no
reason for the suspension. Washington reported his suspension
to the Union, but could not recall his conversation with the
union representative.
On Friday, October 15, King telephoned Washington and left
a message that he wanted to schedule a meeting among himself,
Owen and Washington. After several phone messages, Wash­
ington spoke to King and said he could not attend the meeting.
King told Washington to forget it, and he read the termination
papers over the phone. Washington testified, “I asked him why
and I apologized for what I did.”44 The termination letter stated,
in part: “On February 10, 1999 you were give [sic] a Final
Warning for poor job performance and abusive language.
Since then you have repeated this mis-conduct [sic]. Specifi­
cally, you have failed to perform your job duties at an accept-
able level. You have also continued to use personally abusive
language in the work place.”
On Sunday morning, October 17, Washington went to Re­
spondent’s premises to obtain a free Sunday newspaper as was
permitted. When he attempted to gain entry with his employee
security card, it didn’t work. A mailroom employee admitted
him, and Washington cleaned out his locker. A security guard
escorted him from the premises. At some point following that
Sunday, Washington’s termination papers were mailed to
him.45
I have carefully considered the testimonies of Washington
and King. As noted, there are some significant inconsistencies
in Washington’s account of events. I also note that he did not
deny the conduct that King considered to be disrespectful, al­
though he did attempt to soften the effect, contending that he
had not used certain language and, with regard to the house sale
conversation, had only been joking. Because of the inconsis­
tencies and because of the manner and demeanor of both wit­
nesses, I accept King’s testimony over that of Washington.
The General Counsel presented evidence intended to show
disparate treatment. Otero testified that employees frequently
use profanity and obscenities among one another while working
and that employee David Freeze (Freeze) frequently berated
other employees, calling them incompetent and stupid. Marvin
and Wink told Otero that nobody wanted to work with Freeze.
43 King did not recount the suspension conversation.
44 Washington’s testimony regarding King’s attempt to schedule a
meeting with him was confused and somewhat resistant if not evasive.
He was questioned several times about the sequence of events before it
was finally learned that King had called and left a message, that Wash­
ington returned the call, leaving a message that he couldn’t make the
meeting because of illness, and that when King called again to resched­
ule, Washington again refused to meet because of illness.
45 Washington testified that when his security card did not work, he,
realized he had been terminated. Later testimony, however, revealed
that he was fully aware of his termination before Sunday as King had
already read the termination letter to him.
FRESNO BEE 1173
Otero agreed that he had never seen Freeze direct abuse at
King. Evans testified that in March or April 1998, he observed
Freeze say to Van Der Muellen that he didn’t have to “take this
sh—,” and “get out of my f— face.” Evans understood Freeze
received a 3-day suspension for his conduct.
Kloss testified that the use of profanity among employees in
the pressroom was common. In the last year, he recalled a
night when 8 to 10 pressmen were working. Two employees
had a dispute and began yelling at each other across the room.
Wink was in a position to hear what was going on, but the pro­
fanity was not directed at him, and he did not get involved.
Kloss also testified that employee Jerry McPherrin had said he
was suspended for three days when, using profanity, he “told
off” Lyall. Kloss could recall no other instances of employees
using profanity to a supervisor.
Galleguillos testified that in 1995 or 1996, Dave Reynolds
(Reynolds), maintenance supervisor, used profanity when tell­
ing Galleguillos that he was to follow Reynolds’ directions.
Galleguillos could not recall the profanity used. Galleguillos
said he had heard many profanities used in the presence of su­
pervisors, but could not recall any directed at supervisors.
Respondent countered with evidence that other employees
were also disciplined for abusive behavior. On March 18,
Freeze received a 3-day disciplinary suspension for “yelling
and swearing” at another employee and Van Der Muelen.
Freeze was directed to make an appropriate anger management
appointment before returning to work and informed that failure
to do so, would result in termination. Owen testified that
Freeze gets frustrated if people don’t work as hard as he does,
and sometimes it comes out as confrontational. Respondent has
received complaints about his confrontational manner, but he
has not been terminated because he’s one of the best workers in
the pressroom. In August 1999, employee Scott Simmer was
given a disciplinary letter for insubordinate and disrespectful
conduct directed toward other employees, which stated similar
future conduct could result in termination.
H. Alleged Imposition of New Bereavement Leave Require­
ments on Falcon
Falcon was employed by Respondent from January 7, 1991,
until he terminated his employment on October 1, 1999, at
which time he was a journeyman pressman.
According to Falcon, sometime in September 1998, follow­
ing the union certification, Lyall spoke to a group of four em­
ployees: Cardoza, Franco, and Pat Meyers (Meyers), and him-
self. Lyall said, in effect, that employees were going to get it
now; they should watch their P’s and Q’s, that things were
going to start to change.46
Sometime in November 1998, the Union held a rally at Re­
spondent’s premises. According to Falcon, he asked permis­
sion to attend the rally, but Marvin said the press was running
behind, and Falcon needed to stay and watch the press. Falcon
noticed that 20 to 30 employees attended the rally, and he ob-
46 Falcon agreed that Lyall was, at that time, no longer the pressroom
manager, but was responsible for quality control. Since Lyall’s classi­
fication change occurred in November 1998, Falcon must be mistaken
about the date. I find Lyall was no longer a supervisor when this
statement was made.
served Owen, Carlson, and Lyall standing at the pressroom
windows, watching the rally and writing. Later, Marvin spoke
to Falcon in the presence of Cardoza and told him that it was
best he did not attend as they were writing down names of
those who attended. Carlson testified that he never observed a
union rally at the Fresno Bee or wrote names of employees
attending such a rally. Marvin denied that he had ever told
Falcon he wouldn’t let him go to a union rally or that Respon­
dent was writing down the names of attendees.47
Respondent’s leave policies permit paid bereavement leave.
Employees seeking such leave fill out an absence form and
check the box for “Bereavement Leave.” The form has a line
designated as “Reason for Absence” and directs employees to
include specific information regarding the leave sought. The
General Counsel submitted eight completed forms into evi­
dence. In the “Reason for Absence” line, employees gave such
information as “uncle died” or “death in family” or “funeral.”
On two forms, the lines were blank, but were nonetheless
signed by the department manager as “eligible for paid ab­
sence.”
Falcon testified that sometime in 1997, he claimed bereave­
ment leave upon the death of his uncle, taking 3 days. He was
not required to provide Respondent with any documentation
related to the death. In February 1998, Falcon claimed be­
reavement leave on the death of his grandmother. He was in-
formed of her death at work, left his shift, and took over 2 days
of leave. He was not required to provide Respondent with any
documentation concerning the death. In September, David
Macias, who was unrelated to Falcon, but whom Falcon con­
sidered an uncle, died. Falcon was notified on September 21.
The funeral was to be held about 25 to 30 miles outside of
Fresno on September 23. Falcon had no responsibility for mak­
ing funeral arrangements of for managing any of Macias’ es­
tate, but he did help with the catering.
According to Falcon, on September 21, he telephoned
Marvin and told him he needed 3 days of bereavement leave.
He did not say who had died, and Marvin did not inquire.
Marvin asked if the funeral was out of town, and Falcon said it
was. Marvin said he could not just hand out bereavement pay.
According to Falcon, he said he wasn’t worried about the
money, he just needed the time off. Marvin said, “Okay.”
Marvin did not ask who had died or where the funeral was.
Falcon understood Marvin to acquiesce in his request for leave.
Falcon was absent from work for 3 days. Marvin recounted the
conversation differently. He testified that when Falcon in-
formed him that somebody had died and he needed to take be­
reavement leave, Marvin asked who had died. Falcon said it
was his uncle and that he needed 3 days, that he had it coming.
Marvin asked if the funeral was out of town, and Falcon said it
was not. Marvin told him that he could not receive 3 days, and
Falcon answered, “I have three days coming; I deserve it, and
47 I accept Carlson’s and Marvin’s test imony. In addition to relying
on manner and demeanor, I note Falcon’s testimony suggests that he
alone was left to watch the presses, but all other testimony about the
pressroom shows that multiple employees were necessary when the
press was running. Although called by the General Counsel, Cardoza
was not asked about the conversation.
1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I’m going to take it. And you guys do whatever you need to
do.” He then hung up. Marvin testified that the information he
sought from Falcon was information he asked of other employ­
ees requesting bereavement leave.
Falcon testified that on September 24, he telephoned Re­
spondent to find out what his shifts would be. He spoke to
Wink who said King wanted to talk to him. When King came
on the line, he told Falcon that he, Falcon, was not running the
show, and that he was suspended indefinitely. He gave no rea­
son for the suspension. On September 28, King called Falcon
at home and asked why he had not shown up to work. Falcon
reminded King that he had suspended him. King said Falcon
was to show a death certificate or not bother showing up. Fal­
con told King that he was inconsiderate and thoughtless and
hung up. Falcon felt humiliated by his treatment.
King testified that after learning of Marvin’s conversation
with Falcon, he contacted Falcon by telephone. King told him
he had been trying to reach him, and Falcon said he had just
gotten back from Arizona, from a funeral. King said, “Well,
you told Paul the funeral was in town.” Falcon said he thought
Respondent was playing games with him. King denied that and
told Falcon he was not offering reasonable explanations and
that he should try to bring something—a newspaper clipping, a
death certificate—anything that would show he had been to a
funeral. When Falcon did not report for work, King called him
again. Falcon said he was not due back until he had the re­
quired information. King told him he did not have an indefinite
amount of time to get the information, that he needed to get it
and return to work. A day or two later, after conferring with
Wainwright, King called Falcon again and told him that he had
until the following Friday to bring in the requested information.
Falcon again accused Respondent of playing games with him.48
On September 29, Falcon called Respondent’s human re-
sources department and spoke to Laura Janigian (Janigian),
human resources manager. He told her to send him termination
papers, as he was not returning to work because he had been
forced to quit. He told her that in all the years he had been
there, he had never been asked “this;” he was fed up with it; he
and his wife were offended, and he was choosing not to return
to work.
Wainwright testified that supervisors exercised discretion in
determining the number of days granted for bereavement leave.
Factors to be considered included the location of the funeral
and the involvement of the employee in funeral planning or
estate management. Time off to attend a funeral for a close
friend is addressed in the manager’s manual and permits such
leave only with the approval of the department manager or
division director. During September 1998, Falcon’s department
manager was King.
The General Counsel submitted testimony in support of his
argument that Falcon was accorded disparate treatment. Wash-
48 I accept Marvin and King’s accounts of their conversations with
Falcon. I note the inherent unliklihood of an employee’s requesting
maximum bereavement leave without his supervisor asking for some
details. Further, by his own admission, Falcon was not entirely candid.
By his account, he led Marvin to believe that the funeral was out of
town when in fact it was in the general vicinity of Fresno.
ington testified he claimed bereavement leave in connection
with family deaths in 1994 and 1995. He was not required to
provide proof of the deaths or the funeral locations. At the time
of his mother’s death, Washington’s supervisor would only
allow him 2 days off, and Washington obtained extended time
from Respondent’s personnel office. Kloss testified that he
claimed bereavement leave in 1996 and 1997 upon the deaths
of his grandmother and uncle, respectively. Although employ­
ees were entitled to 3 days bereavement leave, he took only 2
on each occasion. He was not required to provide documenta­
tion of the deaths or locations of the funerals. Kloss’ supervi­
sor, Marvin, asked him who had died, which days he would
need, and whether the funeral would be out of town. Galleguil­
los testified that he has claimed bereavement leave without
being required to furnish any documentation or proof.
I. The Suspension and Final Warning of Kloss
Kloss was chapel chairman under the prior union. In the lat­
est union campaign, he openly wore union insignia, engaged in
other union supportive activities, and attended negotiations as a
member of the bargaining committee. During the preelection
period, he attended a meeting of employees at which Pruitt
spoke. Kloss testified that Pruitt told employees that if the
Union was elected, the Company would play hard ball.
Kloss testified that in the 1986 and 1989, respectively, while
employed by Respondent, he received warnings about his use
of sick leave and was placed on doctor’s note restriction.
In January, Owen, feeling that employees were using exces­
sive sick leave directed Van Der Muelen to investigate em­
ployee sick leave use. The investigation showed that sick leave
use had increased almost 65 percent since the union election in
July 1998. Consequent upon the rise of sick leave use was
increased overtime. Thereafter, Respondent gave warning no­
tices to employees with more than 10 days of sick leave in
1998, excluding employees with major medical problems or
family issues. Van Der Muelen gave Kloss a written warning
regarding excessive sick leave, which stated that during 1998,
Kloss had been absent due to sickness a total of 14 days. Kloss
was placed on doctor’s certificate restriction. Employees
Aguirre, Bobby Gamboa (Gamboa), Tom Flores (Flores), and
Meyers received similar warning notices.49
On June 4, 2000, King gave Kloss a final warn­
ing/suspension, informing him he was being suspended for 3
days because of his sick leave use and pattern. Kloss pointed
out that because of the peculiarity of scheduling, any extended
sickness tied into days off and said he thought having a doctor’s
verification should suffice. According to Kloss, King said that
anybody could get a doctor’s excuse. Kloss said he intended to
pursue the matter further. King told him to go ahead. King
said he still considered Kloss a top employee other than his sick
leave usage. Between June 4, 2000, and March 6, 2001—the
date he testified—Kloss used no sick leave. Sometime in
March 2001, King said he heard a rumor that Kloss feared ter­
mination if he took sick leave. King told Kloss that he thought
49 Meyers was given a warning for poor attendance in August and a
final warning/suspension letter dated May 22, 2000, regarding his ab­
sentee record and “history of being out in conjunction with . . . days
off” and informed that further infractions could result in termination.
FRESNO BEE 1175
he was doing a great job and that if he were sick, he should not
come to work, and he would not be punished for his absence.
J. The Discharge of Aguirre
Aguirre worked for Respondent from March 27, 1997, until
his discharge on September 20, 2000. During the union cam­
paign, he openly wore union insignia at work, attended union
rallies on the Bee’s premises, and distributed union literature in
Respondent’s parking lot during nonworktime, on one occasion
handing literature to Wainwright and Owen. Aguirre served as
an alternate on the Union’s negotiating team.
Aguirre testified that about 3 weeks prior to the election,
Marvin asked him and some other employees what the Union
was going to do for them. He pointed out that the prior union
did not do anything, and that the employees were going to wind
up paying dues and possibly losing benefits. In another conver­
sation, Marvin asked Aguirre if he had been at Denny’s, which
Aguirre inferred to be a question as to whether he had attended
a union meeting held there earlier that day. At about that same
time period, according to Aguirre, Owen saw him wearing a hat
with union insignia and “looked like stunned.” No words were
exchanged. Owen’s manner thereafter changed toward him,
said Aguirre, and she did not speak to him until after the elec­
tion.
Aguirre testified that his supervisor, Lyall had told him, that
employees received 10 days sick leave per year. No one, he
said, ever told him of what number of sick day use Respondent
would consider to be excessive or of policies relating to doc-
tor’s verification or tying sick days to scheduled days off.
Aguirre admitted he took more than 10 days sick leave in
1998, the bulk of them in the latter half of the year. On January
7, Aguirre received a written warning from Van Der Muelen
who said all employees who had gone over their 10 sick days in
1998 were receiving such letters except for employees Cardoza
and John McDonald because the former had a heart problem
and the latter a wife with cancer. Aguirre asked why, and Van
Der Muelen said it appeared that employees were abusing sick
leave. Van Der Muelen told Aguirre he would have to produce
a doctor’s note for future sick leave requests. Thereafter,
Aguirre used additional family emergency leave for serious
family problems, which was charged to sick leave although
Aguirre had requested use of accrued vacation leave. Both Van
Der Muelen and Marvin told Aguirre that since the need for
leave arose under a family emergency, vacation leave could not
be taken.
On August 18, Aguirre received a final warning regarding
excessive absenteeism from Carlson. The notice stated, in part:
“Not only is the number of days you were absent an issue but
also the fact that all of these dates are tied to your days off or
fall on weekends. In addition to this, there were eight incidents
of sick time, 6 of which you failed to meet the requirements of
bringing in a doctor’s certificate.” Aguirre said he told Carlson
the warning was prompted by antiunion considerations, but
Carlson did not respond.
Aguirre incurred 2 days of additional sick time in November.
Aguirre was asked to meet with King and Marvin who asked
him about his sick days and doctor’s notes. King said that the
doctor’s notes were very vague and did not specify the health
problem or the treatment. Aguirre suggested they call his doc-
tor and check it out. King testified that he told Aguirre his sick
leave record was horrible and that he expected him to improve
on it.
On April 12, 2000, Aguirre met with King and Marvin and
was given a written work suspension until further notice dated
April 11, 2000, due to excessive absences and “the pattern” of
sick time use. In addition to reciting the above events, the sus­
pension stated: “On Jan 13, 2000, you called in sick for 4-
consecutive days immediately following your normal Tues­
day/Wednesday days off. Sunday night April 9, 2000, you
called in sick again, when you were already scheduled to be off
on April 10 and 11. The Fresno Bee has afforded you every
opportunity to correct your behavior with no improvement.”50
Believing the doctor’s notes appeared suspicious, after asking
Aguirre’s permission, King took the notes to the doctor’s office
where the office nurse verified them. King said Respondent
decided to give Aguirre another chance.
The following month, Aguirre missed 2 days work because
of his father’s cancer surgery, another 2 in June 2000, and took
2 days of bereavement leave in July 2000. After discussion
with Wainwright, King drafted a “time line” of Aguirre’s ab­
sences for her to see, which showed 12 days sick leave use in
1998, 13 days in 1999, and 12 days in 2000 through September
16. Thereafter, King decided to terminate Aguirre for exces­
sive sick leave use.
On September 21, 2000, King terminated Aguirre. Aguirre
testified that King “started going on about my sick days and all,
and then I proceeded to ask him, ‘well, what, I can’t take any
sick days anymore?’ and then he goes, ‘well, I don’t want to
hear that.’ So I just told him, ‘fine, you know, I don’t want to
hear anything either, just give me my papers and I’ll get out of
here.’” Aguirre was given a termination letter, which he re-
fused to sign. The termination letter stated, in part: “You are
being terminated [as of September 20, 2000] for excessive ab­
senteeism and the pattern in which you use your sick days.”
The letter summarized Respondent’s actions taken through
November, and stated, “April 11, 2000 you were suspended for
5 days for excessive use of sick time and using 5 days in con-
junction with your days off. Since your suspension you have
been out 8 more days. The Fresno Bee has given you every
opportunity to correct your continued abuse of sick time with
no success. Therefore at this time we must terminate your em­
ployment.”
K. The Collective Bargaining
Frank Young (Young), union president at times material
hereto until May 1999, was responsible for bargaining with
Respondent from the Union’s certification date until Brad
Cagel (Cagel), president of the Union from May 1999 until
October 2000, assumed those responsibilities in February
1999.51 Employees Galleguillos and Kloss most consistently
50 At the hearing, Aguirre said the suspension notice was erroneous
in that he did not have normal days off. He did not, however, mention
that discrepancy to King and Marvin because he “felt intimidated.”
51 Cagel’s testimony was often fragmented and sometimes confus­
ing. He tended to give conclusionary testimony. His testimony set
forth herein is constructed from his statements given piecemeal in
1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
attended negotiation meetings as members of the union negotia­
tion committee after Cagel assumed bargaining responsibility.
Other employees attended sporadically. Robert L. Ford (Ford),
attorney, was Respondent’s chief negotiator, accompanied by
Owen and Wainwright.
By letter dated September 16, 1998, the Union advised Re­
spondent, inter alia, that it could not make unilateral changes
without affording the Union the opportunity to bargain. By
letter dated September 30, 1998, the Union requested, inter alia,
copies of all disciplinary actions for the preceding year, which
information was subsequently furnished to the Union.
In February, Respondent, through its negotiator Ford, noti­
fied the Union that it intended to change employee lunch peri­
ods. The Union filed unfair labor practice charges with the
Board alleging that Respondent had refused to bargain over the
proposed changes, and a hearing was held. An administrative
law judge’s decision is currently before the Board on excep­
tions. By letter dated February 22, the Union requested bar-
gaining over the decision and the effects of any changes, and
specified, inter alia, that “no employee should be warned, coun­
seled, disciplined or terminated without bargaining[.]”
Prior to their terminations or other discipline, Respondent
gave no notification to the Union that it intended to terminate or
otherwise discipline employees Barrientez, Evans, Otero,
Washington, Aguirre, and Kloss and, prior to imposition of
discipline did not offer to bargain about the discipline. Re­
spondent gave no notification to the Union regarding the docu­
mentation requirement imposed on Falcon. According to Ford,
at no time did any representative of the Union request bargain­
ing over Respondent’s discipline of these employees or Fal­
con’s bereavement leave. Ford testified that discipline proce­
dures were the subject of bargaining throughout negotiations
and that the parties agreed to just cause as a standard for termi­
nation grounds.
According to Owen, subsequent to the termination of Barri­
entez, Keegan telephoned her and asked if there was anything
Respondent could do to get Barrientez back to work. Owen
said there was not. Thereafter, a bargaining session was held in
June where, according to Cagel, he demanded to know on what
basis the Company felt they could terminate Barrientez and
asked if the termination was based on the policy of substance
abuse that had been proposed by the Company. Ford said that
Barrientez was not terminated based on the proposed substance
abuse policy, but that the termination was consistent with the
existing policy. Cagel asked what the existing policy was.
Ford said he did not know but that the discharge was consistent
with it. According to Cagel, Respondent’s position was that
there were existing conditions they did not have to bargain
about or discuss, including the termination of Barrientez and
that it was improper to discuss his termination at the bargaining
table. Ford asked to leave the bargaining table and meet out-
side the room to discuss Barrientez. Ford, Wainwright, and
Owen met separately with Cagel. According to Cagel, Respon­
dent’s representatives told Cagel that Barrientez’ termination
direct, cross, and redirect examinations. I have referred to the bargain­
ing speakers as “Respondent” and “the Union” where appropriate
unless specificity as to identity is pertinent.
involved a medical condition that was not proper to discuss.
Cagel told them they should reinstate Barrientez.52 They re-
fused. Cagel asserted that Respondent’s policy had suddenly
changed, that Respondent had decided to look for anything to
let a union supporter stumble and fall on, and that they had
known about Barrientez and his medical problem for 20 years.
Ford said the Union could file a charge if it had a problem.
Wainwright testified that when Cagel asked about Barri­
entez’ termination, she suggested that Respondent’s representa­
tives speak with Cagel outside the bargaining room. When the
group met separately from the bargaining committee, Respon­
dent’s representatives told Cagel what had happened on the
night of June 3, and that Barrientez had had a prior alcohol-
related incident at the Company. Ford testified that he told
Cagel in the separate meeting that Barrientez had come to work
impaired under alcohol, that it was not the first time it had hap­
pened, that Respondent was applying progressive discipline to
him, and that unfortunately, he deserved to be discharged. Ford
said Respondent was willing to bargain about the discharge if
that’s what the Union wanted. Owen essentially corroborated
the testimony of Wainwright and Ford. According to all three,
Cagel made little response, and Owen testified that Cagel said
he had not known the information they gave him. According to
Ford, Cagel thereafter never brought up the subject of bargain­
ing over Barrientez’ termination.53
At some point, Keegan informed Cagel of Respondent’s dis­
ciplinary actions against Evans, Otero, and Washington, and of
the circumstances of Falcon’s termination. Cagel testified that
he telephoned Owen several times to discuss the discipline, but
she did not return his calls. Owen denied that she had failed to
return any of Cagel’s calls.54 On November 9, the Union filed
a charge with the Board against Respondent alleging violations
of Section 8(a)(1), (3), and (5) of the Act in the discharge of the
alleged discriminatees and the circumstances surrounding Fal­
con’s termination.
Cagel brought discharged employees Washington, Evans,
and Otero to the bargaining session of November 15. Cagel
spoke at length to Respondent about its failure to reinstate the
employees. Cagel testified that he did not recall asking Re­
spondent why Otero was terminated; he did ask Ford why
Washington and Evans had been terminated, but Respondent
52 Cagel testified that in addition to asking for reinstatement, he
“pitched some settlement,” the specifics of which he could not recall.
53 I accept the testimony of Respondent’s witnesses in this regard. I
note that the Union did not document its demand to bargain, and, al­
though that is not dispositive of whether a demand was made, it is not
unreasonable to expect documentation in so sensitive an area, particu­
larly where the Union has put other demands in writing. Further, Kloss
did not recall anything being said at the bargaining sessions about Bar­
rientez’ termination, which suggests that the Union did not significantly
address the issue.
54 I accept Owen’s testimony in this regard. She appeared to be care­
ful in the performance of her job. I don’t believe she would have left
Cagel’s messages unanswered. Cagel did not testify that he com­
plained about her failure to return his calls in any bargaining session,
and there is no evidence that he made any written protest, both of which
could reasonably be expected if his calls were not returned.
FRESNO BEE 1177
did not answer.55 Cagel testified that Respondent’s representa­
tives consistently refused to discuss any of the discipline.
Cagel said he made an oral request to Respondent to provide
the Union information with respect to the terminations.56 Cagel
testified that at this bargaining session, he also raised the issue
of the unfair labor practice charge, and told Ford that the Union
was prepared to talk about the charges. He requested Respon­
dent bargain with the Union concerning all of the disciplinary
actions taken against all the alleged discriminatees and Falcon.
According to Cagel, Respondent refused. Cagel’s testimony
was somewhat confused. He testified, essentially, that he told
the company their lunchtime changes were causing pressure on
employees to meet impossible expectations, and that the Com­
pany was, at the same time, choking employees with discipli­
nary writeups. Cagel initially testified that Respondent refused
to discuss the disciplinary actions, but later testified that the
Company avoided discussing them by calling for a lunchbreak.
In redirect examination, he first testified that Respondent’s
representatives were “furious,” and then testified that when he
asked to discuss the unfair labor practice charges, they “just
smiled.” Under cross-examination, Cagel agreed that in affida­
vits given to the NLRB, he did not say that the Union had re-
quested bargaining concerning any of the individuals who are
the subject of the present case.
Ford testified that at the November 15 bargaining session,
Cagel made a long speech about Respondent’s terrorizing em­
ployees and violating the law. In response, Ford disagreed with
his characterization of Respondent’s conduct and said that if the
Union wanted to argue about the law, the appropriate forum
was the NLRB. He told the Union that the employees had been
afforded progressive discipline, that the employees had been
terminated for just cause, and that it was not a matter to be
brought up over the negotiating table. He refused Cagel’s re-
quest to reinstate the employees pending a determination of
whether or not the discharges were justified. Ford said he of­
fered to talk about individual discipline matters away from the
bargaining table as negotiations were for contract issues and as
important privacy issues were involved in discussing termina­
tions. Ford said that he and Cagel went alone into the hallway.
Ford told Cagel that if he wanted to talk about the terminations,
Respondent was willing to do so; if he wanted to bargain about
it, Respondent was willing to do so. Cagel said he could not
discuss it that day as he had to go to a press conference called
by the Union. Ford said that Cagel did not, thereafter, bring up
the subject of any of the discharges at negotiations or otherwise
contact Ford about them.57 There is no evidence that the Union
ever requested bargaining about sick leave use discipline.
55 According to Cagel, Respondent’s representatives stared at him
and did not say a word. Later, he seemed to admit that Ford did make
some reply but stated that he said nothing responsive.
56 Cagel agreed that an affidavit given to the NLRB did not reflect
that he made any such request for information.
57 I accept Ford’s testimony. I found him to be a careful witness in
contrast to Cagel’s disjointed testimony described above. I find it
unlikely that Respondent’s representatives would have discussed Barri­
entez’ discharge but refused to discuss those of other employees. Fur­
ther, Cagle’s affidavit is silent regarding the Union’s bargaining re-
L. Additional Evidence
Employee Leo Galleguillos testified that his supervisor is
maintenance supervisor, Dave Reynolds, who reports to King.58
In June 1998, Reynolds told Galleguillos that if the Union came
in, “hell would be paid.” Galleguillos said it would be the best
thing for the shop to have a union. In the spring, after OSHA
conducted an inspection, Reynolds told Galleguillos that he
took it “personal” that Galleguillos had brought in OSHA, and
said, “[H]ell will be paid for it.” Reynolds also said that the
Union was going to screw things up, and “let the games be-
gin.”59
Cardoza attended a union meeting in October where the dis­
charges of employees were discussed. He told the employees
he was sorry that they got fired but that he had warned them.
Cardoza said he had previously discussed possible termination
of employees with William King who told him that people were
sleeping on the job, coming in late, drinking on the job, and that
he was looking into it and would take care of it.
Prior to the termination of pressroom manager, Van Der
Muelen, Owen prepared his written job performance review
dated March 29. The review cited Respondent’s dissatisfaction
with Van Der Muelen’s performance in several areas, including
implementing a team concept of management at a time when
the pressroom was in turmoil due to major operational changes
and “dissension in the ranks because of union issues”; slowness
in reacting to and correcting problems, e.g., repair of mechani­
cal malfunctions and press run staffing; failure to meet dead-
lines and hold down expenses; lack of communication with
supervisors; and lack of responsiveness to other departments.
Following the performance review, on May 5 Moyer, in an
email message to upper management, recommended that Van
Der Muelen be terminated, stating that Van Der Muelen did not
“have a clue as to how to run [the] newsroom”; that he was
getting worse and “costing me way too much in pressroom
overtime, late runs and lousy reproduction.” Moyer added that
morale was worse than before Van Der Meulen began man­
agement.
quests, which, if they had occurred or been refused, I would expect to
figure prominently in the evidence presented during investigation.
58 Galleguillos testified that Reynolds, who was not alleged to be a
supervisor in the complaint, assigns work, prepares and signs written
evaluations, and can let employees go home early. I find him to be a
supervisor within the meaning of the Act.
59 When asked about the conversation, Galleguillos’ testimony was a
little confused:
MR. GALLEGUILLOS: He [said] . . . “The union is going to
screw this things up.” That “I will play hard ball,” is one of his
quotes on that stat ement he said. Excuse me, can I change that?
“We are going to play hard ball”—let’s see, he’s going to be play­
ing hard ball. Oh, “let the games begin,” that’s what it was, “let
the games begin.”
MR. PARKER: Was that in addition to or instead of “playing
hard ball?”
MR. GALLEGUILLOS: It was addition to the “hard ball.”
Although Reynolds did not testify and, therefore, the conversation is
undenied, Galleguillos’ testimony was so convoluted that it is difficult
to ascertain what Reynolds may have said or in what context. I cannot
infer coercive effect from Galleguillos’ test imony.
1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Owen testified that with regard to Van Der Muelen’s per­
formance review, her reference to “dissension in the ranks be-
cause of union issues” related to how close the election vote
had been and the resulting division among pressroom employ­
ees. The reference to “long term problem employees” referred
to Washington among others. She agreed with Moyer’s May 5-
email statement that morale in the pressroom was bad but testi­
fied it was not necessarily because of union issues. According
to Owen, the pressroom had gone through major changes in
terms of staffing and running times, which contributed to low­
ered morale. She considered that Van Der Muelen did not do a
very good job of managing the changes. Owen agreed that how
he handled the union issues was part of the reason Van Der
Muelen was fired, but she testified that there were other, bigger
issues he was not handling well, e.g., maintaining his budget,
meeting deadlines, operating the pressroom according to
schedule, increasing overtime use, and failing to communicate
with superiors or subordinates. She denied that management
had made any decision to bring on a successor who would be
stricter in enforcing discipline than Van Der Muelen had been
or that King had represented he would be stricter. Owen testi­
fied that she recruited King as pressroom manager from his
position as production manager at the Smithfield Herald, a
McClatchy-owned newspaper in South Carolina. In discussing
the job with him, she told him that the pressroom was in tur­
moil and that the Union had been voted in. The employees at
the Smithfield Herald were not represented by any union. She
did not discuss any specifics about the union organization drive
with him.
Owen testified that Respondent would like to have a decerti­
fication of the Union and that such was discussed among Re­
spondent’s managers after the election along the lines of “They
can decertify if they want to.” Owen denied that she discussed
with anyone obtaining a turnover in the work force after the
election in order better to position the Company for a decertifi­
cation election. She also denied that she or any other manager
considered a possible decertification election at all in making
discipline decisions.
King testified that when recruited by Owen, she told him
employees had selected the Union, that the room was evenly
divided regarding support of the Union, and it created a lot of
problems with morale. She told him that Van Der Muelen had
been an ineffective manager and mentioned increased employee
sick leave use and consequent overtime surge. King was aware
that since the unit employees were evenly split in their support
of the Union, any change in the work force could affect any
decertification election results.
III. DISCUSSION
A. The 8(a)(1) Allegations
The General Counsel alleges that Respondent engaged in
conduct supportive of employee efforts to obtain union resigna­
tions or decertification, which constituted unlawful coercion
and encouragement to employees to decertify the Union in
violation of Section 8(a)(1).
While an employer does not violate the Act by providing ac­
curate information about the decertification process when que­
ried by employees, it may not otherwise assist employees in
decertification efforts or provide more than ministerial aid. Vic
Koenig Chevrolet, 321 NLRB 1255 (1996), enf. denied in part
126 F.3d 947 (7th Cir. 1997); Quinn Co., 273 NLRB 795
(1984). There is no bright line test with which to distinguish
unlawful assistance from mere ministerial aid.60 The Board has
found that unlawful assistance with a decertification effort in­
cludes planting the seed of the decertification concept, helping
with wording, typing, etc., and knowingly permitting the activ­
ity on work time. Exxel-Atmos, Inc., 323 NLRB 884 (1997);
Shen Automotive Dealership Group, 321 NLRB 586 (1996);
Weisser Optical Co., 274 NLRB 961 (1985), enfd. 787 F.2d
596 (7th Cir. 1986), cert. denied 479 U.S. 826 (1986). In East-
ern States Optical Co., 275 NLRB 371 (1985), the Board
stated:
[W]e agree that it is unlawful for an employer to initiate a de-
certification petition, solicit signatures for the petition, or lend
more than minimal support and approval to the securing of
signatures and the filing of the petition. In addition, while an
employer does not violate the Act by rendering what has been
termed “ministerial aid,” its actions must occur in a “situ­
ational context free of coercive conduct.” In short, the essen­
tial inquiry is whether “the preparation, circulation, and sign­
ing of the petition constituted the free and uncoerced act of the
employees concerned.” [Footnotes and citation omitted.]
In Ernst Home Centers, 308 NLRB 848 (1992), the Board
concluded that an employer’s providing language to be used in
a decertification petition constituted mere ministerial aid and
not unlawful encouragement. In Walter Garson, Jr. & Associ­
ates, 276 NLRB 1226 (1985), the Board found that permitting
petition circulation on work time and use of the plant telephone
did not mean an employer had unlawfully assisted the decertifi­
cation effort. In Times-Herald, Inc., 253 NLRB 524 (1980), an
employer’s providing a list of employee names to a decertifica­
tion committee was not found to be unlawful assistance. In
those cases, as in Eastern States Optical Co., supra, the Board
appears to focus its assistance vs. ministerial aid inquiry on
whether the inception, preparation, and processing of any de-
certification petition are the free and uncoerced acts of employ­
ees.
Here, the decertification plan clearly originated with em­
ployees. Cardoza, who was aware of the process from a prior
decertification effort, voluntarily promoted the decertification
drive and voluntarily told management of his activities. Upon
Cardoza’s informing her of his intended decertification activity,
Owen said that was fine, and Moyer told Cardoza to “keep up
the good work.” King accepted Cardoza’s reports of his decer­
tification progress without remonstrance. Respondent’s tacit
approval of the decertification effort, however, does not equate
to assistance. The only assistance that Respondent can be ac­
cused of is (1) permitting Cardoza to use a second locker for his
60 The court in Vic Koenig expressed frustration with the lack of a
clear definition, stating that the Board failed to indicate whether the “no
more than ministerial aid” formula meant anything more than that the
employer may not give aid that is likely to affect the outcome of the
decertification effort. Id. at 949.
FRESNO BEE 1179
decertification materials, and (2) permitting him to make decer­
tification-related telephone calls from King and Marvin’s of­
fices. While granting those privileges demonstrates a passive
sort of assistance, I cannot find Respondent’s actions to consti­
tute unlawful endorsement or encouragement of the decertifica­
tion activity. There was no threat of reprisal or promise of
benefit made to any employee, including Cardoza, and it is
uncontroverted that employees not involved in dissident activi­
ties had second lockers and that employees were generally
permitted to make personal phone calls in Marvin’s office. It is
not clear whether Cardoza or Lee circulated the petition during
working time. But even if they did, there is no evidence that
Respondent knew of it or that permitting it was a departure
from solicitation freedom accorded nondissident employees.
The extension to Cardoza and Lee of the same privileges ac­
corded to other employees cannot, in my opinion, constitute
unlawful assistance, and refusal to do so might be disparate
treatment. Finally, I have examined carefully whether Respon­
dent’s actions would in any way interfere with employees’ free
choice or be likely to affect the outcome of any election. I find
they would not. Accordingly, I conclude that the preparation
and circulation of the petition expressed the free and uncoerced
intent of the employees concerned, and that Respondent did not
unlawfully assist in its inception or fruition in violation of Sec­
tion 8(a)(1) of the Act. I shall, therefore, dismiss that allegation
of the complaint.
B. The 8(a)(3) Allegations
The General Counsel argues that Respondent displayed ani­
mosity toward its employees’ union support by statements
made prior to the election and outside the 10(b) period. Coun­
sel for the General Counsel correctly observes that although
independent 8(a)(1) allegations may be barred by Section 10(b)
of the Act, such statements may establish antiunion animus.
The credited evidence shows that prior to the election, Respon­
dent told employees it would play “hard ball.” It is not clear in
what regard the term was used. No one testified that it corre­
lated with any specific threat, and one witness testified it was
used in conjunction with prospective bargaining. The use of
the term “hard ball” without other evidence of threats or coer­
cion does not constitute adequate evidence of antiunion animus
where the statement may well refer to future bargaining rather
than reprisals. Legitimate predictions of hard bargaining do not
constitute animus. Matthews Industries, 312 NLRB 75 (1993);
see also Cla-Val Co., 312 NLRB 1050 (1993). The General
Counsel also points to Lyall’s statement that employees needed
to watch their “P’s and Q’s” and that changes would occur as
evidence of animus. I have found the statement was made at an
undetermined time after Lyall ceased to be a supervisor and
thus cannot be charged to Respondent.
The General Counsel also asserts that Wink’s statement that
union selection would open a “can of worms” shows animus. It
is not clear what Wink meant by his statement, but it is reason-
able to infer that he was predicting some unspecified turmoil at
work if the Union were selected, although the expected source
or ramification of the turmoil was not disclosed. It is not possi­
ble to infer any threat from the statement. While Section
8(a)(1) prohibits certain speech and conduct deemed coercive,
employers are free under Section 8(c) of the Act to express
their views, arguments, or opinions about and regarding unions
as long as such expressions are unaccompanied by threats of
reprisals, force or promise of benefit. Eckert Fire Protection,
Inc., 332 NLRB 198 (2000). Clearly, Wink’s statement does
not rise to the level of an 8(a)(1) violation. However, conduct
may exhibit animus that is not independently found to violate
the Act and may shed light on the motive for other allegedly
unlawful conduct. Meritor Automotive, Inc., 328 NLRB 813
(1999). I cannot find Wink’s statement exhibits animus or
sheds light on the complaint allegations. A supervisor’s state­
ment that unrest will likely follow union selection does not, by
itself, convey that the employer would author the unrest or
thereafter act to the detriment of employees. The statement is
too vague to constitute animus or reveal motive for Respon­
dent’s distant future actions.
Marvin’s statement, prior to the election, that the prior union
did not do anything for employees and that the employees were
going to wind up paying dues and possibly losing benefits,
reveals a clear preference that employees reject the Union, and
arguably demonstrates animus. Marvin may also, preelection,
have interrogated Aguirre as to his attendance at a union meet­
ing held at Denny’s. However, Marvin’s preelection conduct is
so remote from the alleged violations of the Act, that I cannot
find it to cast any significant light on Respondent’s actions
occurring nearly a year later. There is no evidence of any in­
tervening expression of animus toward employees’ union ac­
tivities generally or individually. Therefore, the relatively iso­
lated and slight animosity expressed by Marvin cannot support
a conclusion that animosity motivated Respondent’s adverse
employment actions. I conclude, therefore, that there is little
evidence of overt animosity toward employees’ union activi­
ties.
The General Counsel and the Charging Party’s primary the­
ory of the 8(a)(3) discharge allegations is essentially that Re­
spondent, bearing animosity toward employees’ union activi­
ties, desired to rid itself of the Union, and in anticipation of a
decertification election sought to disbalance the union adherent
ratio by terminating union proponents. It is conceded that Re­
spondent’s management was aware of the antiunion activity of
Cardoza and other employees, and Owens candidly admitted
that Respondent would welcome a decertification of the Union.
If Respondent discharged employees in order to undercut the
Union’s majority, even though it may not have targeted the
most prominent union activists, such is violative of Section
8(a)(3) of the Act. Excel Case Ready, 334 NLRB 4 (2001). In
proving this, “the General Counsel must establish that the em­
ployees’ protected conduct was, in fact, a motivating factor in
[Respondent’s] decision.” Webco Industries, 334 NLRB 608
(2001). While there is little or no explicit evidence of an anti-
union motive behind Respondent’s disciplinary actions herein,
motive is a question of fact, and the Board may infer discrimi­
natory motivation from either direct or circumstantial evidence.
Since direct evidence is rare, evidence of an employer’s motive
in discharging an employee must frequently be gleaned from
the circumstances surrounding the discharge. Indications of
discriminatory motive may include failure to conduct a full and
1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fair investigation of alleged misconduct,61 a failure to disclose
the reason for the discharge,62 a false assertion of lawful pur­
pose,63 a pretextual reason,64 disparate treatment,65 a departure
from past disciplinary practice,66 the insubstantial nature of the
alleged misconduct versus the extreme severity of the punish­
ment,67 and/or the employer’s inability to adhere to a consistent
explanation for the discharge.68
Counsel for the General Counsel asserts that Respondent’s
failure to discourage Cardoza’s “bubbling volcano of informa­
tion” about the decertification drive shows motive. There is no
authority requiring an employer to refuse to listen to an em­
ployee’s voluntary report of union or antiunion activity, and I
cannot draw any inferences from Respondent’s failure to re-
press Cardoza’s confidences. There is no evidence that Re­
spondent encouraged employees to support the decertification
effort or engaged in any coercive conduct directed toward it or
toward employees’ union activities generally. Simply listening
to reports of decertification progress cannot constitute coercion
or support.
Counsel also argues that Cardoza’s talking with King about
the possible termination of employees in conversations where
the decertification effort was also discussed provides evidence
of motive. Cardoza’s testimony was as follows:
M R. M ANRIQUE: Did you discuss the possible termina­
tions of employees with William King prior to that meet­
ing at Denny’s with the employees who had been dis­
charged?
M R. CARDOZA: Termination of employees. Yes, I did.
M ANRIQUE: Okay. And what did he say to you and
what did you say to him?
M R. CARDOZA: Things mentioned most were people
sleeping on the jobs and coming in late. Drinking on the
job. That’s it.
M R. MANRIQUE: And what did he say—what he was
doing in connection with those matters?
M R. CARDOZA: He says he was looking at it. He’d
take care of it.
Cardoza’s testimony unquestionably creates a substantial
suspicion that King may have assessed the impact of termina­
tions on the success of the decertification petition. But suspi­
cion may not substitute for evidence and is not sufficient to
establish motive. The Board has observed that even when the
record raises substantial suspicions regarding adverse action
against employees, the General Counsel is not relieved of his
burden of proving that Respondent was illegally motivated.
Murphy Bros., Inc., 267 NLRB 718 (1983); Carrom Division,
245 NLRB 703 (1979). Cardoza’s testimony does not show
that King was planning to terminate any employee to shape the
61 Bonanza Aluminum Corp., 300 NLRB 584 (1990).
62 NLRB v. Griggs Equipment, 307 F.2d 275 (5th Cir. 1962).
63 Sahara Las Vegas Corp., 284 NLRB 337 (1987).
64 Pacific FM, Inc., 332 NLRB 771 (2000); Fluor Daniel, 311
NLRB 498 (1993).
65 NACCO Materials Handling Group, 331 NLRB 1245 (2000).
66 Sunbelt Enterprises, 285 NLRB 1153 (1987).
67 Detroit Paneling Systems, 330 NLRB 1170 (2000).
68 Atlantic Limousine, 316 NLRB 822 (1995).
decertification outcome. While the testimony could arguably
be viewed as revealing management deliberation of how to
terminate prounion employees and thereby skew the decerti­
fication results (an unlawful object,) it could also be viewed as
management cognizance of genuine employee misconduct and
intent to resolve it (a lawful object.) As there is insufficient
basis to ascribe an unlawful rather than a lawful meaning to
King’s words, I cannot find Cardoza’s testimony establishes
antiunion motivation. See Pullman Power Products Corp., 275
NLRB 765 (1985).
The General Counsel’s further arguments that animus is es­
tablished by Respondent’s selective and one-sided investiga­
tions of employee misconduct and disparate treatment are dealt
with below. As set forth in greater detail in the discussions of
individual discharges, there is no evidence to support any find­
ing that Respondent discharged or otherwise disciplined em­
ployees in overt or tacit backing of the decertification effort or
in retaliation against prounion employees. Therefore, I cannot
find that Respondent took any adverse employment action
against any of the alleged discriminatees because of his union
activities or because he did not support decertification of the
Union.
A more compelling (and subtle) theory implicit in the Gen­
eral Counsel and the Charging Party’s arguments is that Re­
spondent tightened discipline of employees as an indirect re­
sponse to their selection and support of the Union or, as the
Charging Party puts it, “exaggerated minor matters into maxi-
mum discipline.” For brevity’s sake, I will refer to this theory
as the “low-morale” theory. Respondent was admittedly con­
cerned with low morale among its pressroom employees. The
low morale equated, at least in part, to its employees’ selection
of the Union. See Intercon I (Zercom), 333 NLRB 223 (2001).
Thus, Owen believed that employee dissension regarding union
support or nonsupport was a factor in production problems and
that dissension existed in the ranks, in part, because of union
issues. While Owen testified that sick leave use had increased
almost 65 percent following the election with a concomitant
increase in overtime, neither Respondent nor the General Coun­
sel provided documentation of comparative production or cost.
Although I accept Owen’s testimony of increased sick leave
and overtime, that is only one factor of a business’ operating
expenses. It is not clear, therefore, whether an actual produc­
tion dip or expense increase occurred during 1999. Moreover,
although Owen clearly attributes the problem with sick leave to
union factionalism, there was also a significant change in proc­
essing methods at that time, which admittedly caused work-
place disruption. Other than Owen’s testimony of low morale,
there is no evidence that the employees’ exercise of their pro­
tected rights resulted in a less harmonious or friendly work
atmosphere than existed before the union issue arose or that it
interfered with production. Respondent’s perception was that
production had been harmed by low morale, that the low mo­
rale was, in large part, a result of union activity, and that low
morale needed to be addressed. However, the totality of evi­
dence suggests that Respondent’s viewpoint was a reaction to
its dissatisfaction with an amorphous atmosphere of “dissen­
sion,” which Respondent believed was engendered by conflict­
ing employee opinions of the Union. I find, therefore, that
FRESNO BEE 1181
employee protected activity was “inextricably intertwined”
with Respondent’s perception of low employee morale.69
Perceived low employee morale was a significant factor in
Respondent’s 1998 determination to change pressroom manag­
ers, and it seems clear that the replacement manager, King, had
a stricter management approach than the pressroom had for­
merly experienced. His introductory words to Respondent’s
employees, i.e., that he was not there to be the employees’
friend, that he had a job to do, portend a premeditated stricter
approach to discipline. The evidence shows that under his
management, a greater scrutiny of employees’ work records
and a more stringent approach to discipline occurred than with
his predecessors. Further, following King’s arrival at Respon­
dent, an unprecedented number of discharges occurred, which
strongly suggests tightened discipline. While an employer has
an undeniable and legitimate concern in its productive and eco­
nomic well being, it may not penalize employees because of a
mere perception that their protected activities threaten that well
being. The General Counsel argues that under King, employee
behavior formerly condoned or less severely punished by Re­
spondent elicited harsher discipline than would have been given
under prior management and that a continuum of harsher disci­
pline, instituted in response to employee union activities, cul­
minated in the terminations of Washington, Evans, Otero, and
Aguirre and in the suspension and final warning of Kloss.70
An employer violates Section 8(a)(3) and (1) when it increases
discipline in response to union activity among its employees.
Keller Mfg. Co., 237 NLRB 712 (1978), citing Upland Freight
Lines, Inc., 209 NLRB 165 (1974), enfd. 527 F.2d 766 (9th Cir.
1976); Jennie-O-Foods, 301 NLRB 305 (1991). Since the Gen­
eral Counsel has established that the pattern of discipline insti­
tuted by King differed from that of his predecessors, a prima
facie case of discriminatory motive has been presented requir­
ing Respondent to show that its increased discipline was moti­
vated by considerations unrelated to its employees’ union ac­
tivities. Put another way, if discipline was imposed because of
Respondent’s attempt to eradicate low morale (intertwined with
union activity) the discipline is unlawful. In support of that
contention, it is not necessary for the General Counsel to prove
that King bore any animus toward employees’ union activities
or was himself motivated by consideration of union activity in
disciplining employees. Respondent’s perception of low em­
ployee morale prompted the introduction of King into press-
room management and brought about a tightening of discipline.
Therefore, Respondent set in motion a chain of events resulting
in heightened employee discipline based, at least in part, on
employees’ union activities. Inasmuch as one motive for the
changed management and tightened discipline was employee
protected activity, an inference of unlawful motivation is estab­
lished in the discipline accorded Washington, Evans, Otero,
Aguirre, and Kloss. The General Counsel has, therefore, met
his burden of showing that antiunion sentiment was a substan­
tial or motivating factor in germinal management decisions, the
69 See Dollar Rent-A-Car of Las Vegas, 264 NLRB 997, 101 (1983).
70 The discharge of Barrientez, occurring prior to King’s employ­
ment, does not fit within this analysis and is dealt with separately be-
low.
aftermath of which encompassed the terminations of Washing-
ton, Evans, Otero and Aguirre and the suspension and final
warning of Kloss.
In determining whether Respondent acted unlawfully by
terminating Washington, Evans, Otero, and Aguirre and by
suspending and giving a final warning to Kloss, I follow the
Board’s analytical guidelines in Wright Line.71 Since the Gen­
eral Counsel’s evidence supports a reasonable inference that
protected concerted activity was a catalyzing factor in a chain
of events leading to Respondent’s discipline of these employ­
ees, he has made a prima facie showing of unlawful conduct.
The burden of proof then shifts to Respondent to establish per-
suasively by a preponderance of the evidence that it would have
made the same decisions, even in the absence of union activ-
ity.72 Avondale Industries, 329 NLRB 1064 (1999); T&J Truck­
ing Co., 316 NLRB 771 (1995). Respondent must show that
the discipline of those employees would have occurred even in
the absence of the stricter management approach of King. In
determining whether Respondent would have disciplined
Washington, Evans, Otero, Aguirre, or Kloss notwithstanding
the pressroom union activity, it must be noted that the mere fact
that an employer may desire to terminate employees to curtail
union activities or, as here, to correct employee “morale” prob­
lems, does not, of itself, establish the illegality of the dis­
charges. If an employee provides an employer with sufficient
cause for dismissal by engaging in conduct that would, in any
event, have resulted in termination, the fact the employer wel­
comes the opportunity does not render the discharge unlawful.
Klate Holt Co., 161 NLRB 1606, 1612 (1966); Avondale Indus­
tries, supra. Further, it is well established that the Board “can-
not substitute its judgment for that of the employer and decide
what constitutes appropriate discipline.” Detroit Paneling Sys­
tems, Inc., 330 NLRB at 1171, and cases cited therein. How-
ever, the Board’s role is to ascertain whether an employer’s
proffered reasons for disciplinary action are the actual ones. Id.
With these guidelines in mind, the individual instances of dis­
cipline alleged as violations of Section 8(a)(3) and (1) are here-
after discussed.
1. The suspension and discharge of Barrientez
Barrientez was a long-term employee of Respondent. In
1991, he was terminated for 5 days’ absence without leave and
only reemployed under a commitment to undergo a 1-year al­
cohol rehabilitation program. Respondent has an employee rule
that prohibits appearing for work under the influence of [alco­
holic beverages]. The credited testimony establishes that Barri­
entez appeared for work on June 12 under what appeared to
Supervisor Wink and employee Franco to be the influence of
alcohol. The General Counsel argues that Respondent did not
establish that Barrientez was intoxicated or work impaired that
evening. Respondent is not required to do so. It is only manda­
tory that the motivating reason for the discipline is not dis-
71 251 NLRB 1083 (1980), enfd. 662 F. 2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
72 A “preponderance” of evidence means that the proffered evidence
must be sufficient to permit the conclusion that the proposed finding is
more probable than not. McCormick, Evidence, at 676–677 (1st ed.
1954).
1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
criminatory. Respondent is otherwise free to exercise its dis­
cretion with respect to employee discipline. The motive of
Respondent in discharging Barrientez is, therefore, pivotal to
this case.
Here, there is no direct evidence of an antiunion motive in
the suspension and/or discharge of Barrientez. Although he
was a known union adherent, no threatening or coercive state­
ments were ever made to him, and there is no evidence that
Respondent seized on or distorted a “minor” incident as an
opportunity to get rid of a union adherent. Indeed, Barrientez’
first-line supervisor, Wink, notwithstanding his opinion that
Barrientez was to some extent under the influence of alcohol,
permitted him to work on June 12 because he did not want to
get him fired. Wink told Barrientez he was not to show up for
work in “the shape [he was] in again.” Wink clearly believed
that if upper management learned of Wink’s condition, he
would be fired, and there is no evidence he believed the dis­
charge would be pretextual. Wink permitted Barrientez to con­
tinue working as he thought he could “get through the shift,”
and the incident would have been overlooked had not Barri­
entez been injured. The General Counsel argues that Respon­
dent has not shown the injury was alcohol related, but the Gen­
eral Counsel is trying to place on Respondent a burden it
doesn’t have to assume. Barrientez’ injury merely brought
Respondent’s full scrutiny to the question of whether he was
alcohol impaired at work, a clear violation of established rules.
Having its attention flagged by the work injury, Respondent
thereafter conducted an investigation. The General Counsel
argues that the investigation was perfunctorily or inadequately
conducted. However, it is clear that Respondent interviewed
several people concerning the events of June 12, including
employees. There is no evidence that Respondent sought to
shape or distort the investigation or that there was not genuine
fact gathering. Uncontroverted evidence shows that Barrientez
had, in fact, consumed alcohol before reporting for work on
June 12. His supervisor’s credible perception of his condition
coupled with Barrientez’ accident is information Respondent
was entitled to rely on in forming a good-faith belief that Barri­
entez had violated its alcohol prohibition rule.
Appearing for work in any degree alcohol impaired is very
serious employee misconduct, and discharge is not unwar­
ranted. There is no evidence that the proffered basis for Barri­
entez’ suspension and discharge was pretextual. There is no
evidence of shifting reasons; Respondent consistently main­
tained to Barrientez and to the Union that the discharge was
based on Barrientez’ alcohol use. There is no evidence of any
departure from past practice. Evidence shows that Respondent
had disciplined employees for any use of alcohol on its prem­
ises. Barrientez had already been extended lenience when he
was rehired following a 1991 alcohol-related absence from
work. The requirement that Barrientez undergo a rehabilitation
program as a condition of employment is tantamount to a pro­
viso that he not engage in any alcohol-related misconduct. It is
not unreasonable that Respondent should be wary of a repeat
performance, particularly in light of the potential for injury in
alcohol-related accidents. Finally, there is no evidence of dis­
parate treatment. While two other employees were suspended
rather than discharged when caught in the parking lot with open
alcohol containers, that fact supports rather than negates the
lawfulness of Barrientez’ discharge. The discipline given the
two employees demonstrates Respondent’s strict approach to
alcohol use at work, even in the parking lot. Further, there is
no evidence that the two employees were repeat offenders as
was Barrientez, and there is no evidence that any injury oc­
curred during the period they were found with open alcohol
containers.73 The General Counsel has not shown that discrimi­
natory intent formed any part of Respondent’s motivation in
discharging Barrientez. Accordingly, I find the General Coun­
sel failed to meet his Wright Line burden of establishing a
prima facie case that Barrientez was suspended and/or dis­
charged because of his or others’ union activity, and I shall
dismiss the allegations of the complaint relating to Barrientez.
2. The final warning and discharge of Evans
The uncontroverted evidence establishes that Evans was
counseled in July and August about his attendance proble On
August 10, Owen told him that he had missed 13 days of work
and would be terminated if he missed any more. Evans argued
that his recently assumed responsibilities as a single parent
should procure Respondent’s understanding and toleration of
his absences. On August 18, Evans was given a final warning,
which he refused to sign because he believed it based on his
union sympathy and because Respondent was disregarding his
family circumstances. There is no evidence that Respondent
was in any way motivated by Evans’ union activities or lean­
ings in issuing the final warning. Although Evans testified
without specific contradiction that Carlson was silent when he
accused Respondent of union animus in issuing the final warn­
ing, that alone is not sufficient to show it was given unlawfully.
There is no evidence that Respondent was aware of Evans’
prounion sympathy or activity. Owens credibly testified that
Evans told her he wanted nothing to do with the Union. Fur­
ther, employees Aguirre and Meyers were also given written
warnings at the same time.74 King had nothing to do with the
events leading up to Evans’ final warning. There is no evi­
dence to support the General Counsel’s allegation that Evans’
final warning was discriminatorily motivated. I find that the
73 Although counsel for the General Counsel argues in his brief that
Supervisors Marvin and Wink were aware Gamboa had appeared at
work drunk and failed to discipline him, the transcript does not support
such an assertion. Otero, on whose testimony counsel relies, testified
that he believed Gamboa had been caught in the parking lot with a beer
in his possession many years prior, and that he worked while under the
influence of alcohol on that same occasion. He testified that Wink
never said anything to him on that occasion to indicate he was aware
Gamboa was drunk. Otero also testified that a few days after Gamboa
came to work alcohol impaired (in Otero’s opinion), Wink and Marvin
told him that they believed Gamboa was drinking. Although counsel
for the General Counsel has combined the testimony to prove Respon­
dent knowledge of Gamboa’s working while alcohol impaired, that
conclusion is not justified. The statements of belief that Gamboa was
drinking may simply reflect that both Marvin and Wink believed him to
have an alcohol-related problem but not necessarily that he was under
the influence of alcohol while at work. Otero’s recall was hazy, appar­
ently based on reports by nonsupervisory individuals, and, even if
accepted, fails to show disparate treatment.
74 The final warning issued to Aguirre in August is not alleged to
violate the act although his later discharge is.
FRESNO BEE 1183
General Counsel has failed to meet his burden of proof as to
this allegation.
The General Counsel contends that Respondent’s discharge
of Evans occurred because he was a known union supporter.
There is no evidence that Respondent knew of Evan’s union
adherence, much less bore animus toward him. Evans pro­
fessed himself to be antiunion, and while he did not sign the
decertification petition, the absence of his name does not sup-
port an inference that Respondent thereby knew he was a union
supporter. No coercive statements were directed toward him,
and his freedom to engage in union activity was not abridged in
any way.
Respondent asserts that Evans was given a final warning and
discharged because he left work early on September 3 notwith­
standing King’s specific directions that he shoulder the burden
of plate burning and not rely on Hoard who was needed in pre-
press. The General Counsel argues that King essentially leaped
to judgement in finding Evans had contravened his orders, con­
ducted an inadequate investigation, and accepted biased infor­
mation, all of which points to animus. I cannot agree. The
evidence shows that King spoke with all persons involved in
Evans’ work performance on September 3, and no reason has
been shown why King should not have believed those he inter-
viewed. See American Thread Co., 270 NLRB 526 (1984). It
is not clear that a method existed to determine which individual
employee burned which plates, and there is no basis or legal
authority for requiring Respondent to undertake extraordinary
measures in its investigation. It is not necessary for Respon­
dent to prove that Evans disobeyed instructions; it is only nec­
essary to show that Respondent had a reasonable and nondis­
criminatory belief that he had done so. Id. Moreover, while
King may not have spoken to Evans about the September 3
events prior to his discharge meeting, interviewing the subject
employee is not a requirement for an adequate investigation.
Frierson Building Supply Co., 328 NLRB 1023 (1999). More-
over, King credibly testified that had Evans proffered an ac­
ceptable explanation, he would not have been discharged. Ev­
ans offered no explanation, reacting in an accusatory and con­
frontational manner and essentially preventing King from ob­
taining any explanation. I conclude that Respondent’s investi­
gation was neither superficial nor inadequate and does not war-
rant any inference that the basis for Evans’ final warning or
discharge was pretextual.
The General Counsel also asserts that Evans was disciplined
disparately, which warrants an inference of unlawful motive. A
finding of disparate treatment must be supported by a showing
that employees similarly circumstanced were treated differently
than Evans. No such evidence was introduced. Evans engaged
in the unprotected activity of failing to follow his manager’s
instructions, and he was fired for it. See Tom Rice Buick,
Pontiac & GMC Truck, 334 NLRB 785 (2001). There is no
evidence that any other employee was more favorable treated,
and there is no evidence of antiunion motivation in the dis­
charge.
The analysis of Evans’ discharge does not, however, end
there. Consistent with the “low-morale” theory, a factor in
Evan’s discharge was Respondent’s tightening of discipline,
which was motivated in part by unlawful considerations.
Therefore, the burden of proof shifts to Respondent to establish
by a preponderance of the evidence that it would have dis­
charged Evans even in the absence of employees’ union activ­
ity. I find that Respondent has met its burden. It is clear that
Evans was already skating on disciplinary thin ice when on
September 3, he failed to follow King’s orders. He had a pend­
ing final warning about his attendance, and his conduct on Sep­
tember 3, involving leaving work early, related to his atten­
dance problems as well as constituting insubordination in fail­
ing to follow orders. Moreover, there was documentation in his
file that Evans had engaged in similar conduct in January when
he left work saying that another employee was going to burn
the plates. There is no evidence that any other employee had a
similar history of infractions and warnings but had escaped
discharge. I conclude that Evans’ persistent misconduct would
have procured his discharge even in the absence of changed
management. Accordingly, I find that Respondent has estab­
lished that it would have both warned and discharged Evans
irrespective of his union activity or the union activity of other
employees and irrespective of the selection of King as press-
room manager. Therefore, I find that the General Counsel failed
to prove that Respondent violated Section 8(a)(3) and (1) of the
Act by its discipline of Evans, and I shall dismiss the allega­
tions of the complaint relating to Evans.
3. The suspension and discharge of Otero
As set forth above, I have concluded that Otero was, in fact,
caught sleeping during working hours by King on September
25 and that he had previously been caught sleeping and orally
warned by Wink. Respondent’s lawfully established rules of
employee conduct prohibit sleeping while on duty. While
Otero was a known union adherent, there is no evidence that
Otero’s discharge was directly motivated by animus toward his
union activities. The only question to be resolved under the
theory explicated above is whether Otero would have been
discharged irrespective of the identity of the pressroom man­
ager.
The General Counsel argues that Respondent, historically,
has not considered employees’ sleeping at work to be a signifi­
cant problem, but the evidence does not support any such con­
clusion. While there was some evidence of employees either
sleeping or sitting with closed eyes when working double or
evening shifts, it does not appear that such was generally toler­
ated by Respondent. Kloss testified that Respondent did not
permit sleeping on the job. Galleguillos testified that he had
not seen employees with their eyes closed during day shifts,
and Kloss identified Otero as the only employee he had seen
with closed eyes at work. Given these employees’ testimony, I
accept Marvin and Carlson’s denials that they permitted em­
ployees to sleep during work hours. I find Otero was sus­
pended and discharged for sleeping on the job—a clear viola­
tion of a known employee rule—and that neither his suspension
nor his discharge was motivated by antiunion considerations.
Having reached the above conclusions, it nonetheless re-
mains to consider whether Otero would have been suspended or
discharged under King’s predecessor managers. The evidence
clearly suggests he would not have been. Otero’s employment
record was clear of prior infractions and discipline. Although
1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wink had caught him sleeping and had orally warned him, he
had no written warnings regarding sleeping on the job or any
other breach of rules. The suspensions and discharges of other
employees herein involved situations where the employees had
existing written warnings. Otero had none. While the Board
does not question an employer’s discretion to bypass progres­
sive discipline for egregious violations of its work rules,75 I
cannot find Otero’s conduct so egregious as to dictate his sus­
pension and termination under the standards followed by man­
agers predecessor to King. It was apparently not unusual for
employees to exhibit drowsy behavior at work, and Lyall testi­
fied he had seen employees with “church heads” (nodding off)
without, apparently, considering it a disciplinary offense. Wink
did not see fit to give Otero a written warning when finding
him sleeping, although he did warn him he could be fired for
his breach of rules. Moreover, Respondent appears to have
considered extenuating circumstances (e.g., working a night or
double shift) in reacting to employees with closed eyes at work.
Here, the evidence is clear that press problems on September 25
left Otero with lengthy down time during which his relaxing
was acceptable. The evidence of employee discipline overall
suggests that the slowness of the work during Otero’s Septem­
ber 25 shift would likely have been considered an extenuating
circumstance by a manager other than King. Therefore, Re­
spondent has not persuasively established by a preponderance
of the evidence that it would have suspended or discharged
Otero for sleeping on the job irrespective of the selection of
King as pressroom manager. At best, Respondent has shown
that Otero may or may not have been suspended and/or dis­
charged but for Respondent’s concerns over low morale. Thus,
Respondent has not met its burden. Pacific FM, Inc., supra.
Accordingly, I find that Respondent violated Section 8(a)(3)
and (1) of the Act by suspending and discharging Otero.
4. The suspension and discharge of Washington
Although Washington was a known union adherent, no man­
agement member ever commented on his union activity, and
over a year had passed since the union election before his al­
leged unlawful discipline took place. However, under the low-
morale theory, such evidence is not a necessary element of
discriminatory conduct. If Washington was a victim of King’s
stricter discipline and would not, in the absence of that, have
been suspended or fired, his suspension and discharge are
unlawful. I conclude, however, that Respondent has persua­
sively established by a preponderance of the evidence that it
would have suspended and terminated Washington even in the
absence of employees’ union activity or King’s managerial role
because of his insubordinate conduct.
Credible evidence shows that almost from the commence­
ment of King’s management of the pressroom, Washington
exhibited a hostility toward King which manifested itself in
disrespectful, disparaging, and confrontational conduct. In
Washington’s initial meeting with King, he disrespectfully
refused to discuss one of his press reports, telling King the
report was self-explanatory and walking out of the meeting.
Washington thereafter dismissively rebuffed King’s suggestion
75 Cotter & Co., 331 NLRB 787, 786 (2000).
that he have a plate burned by reel room employees, made of­
fensive reference to King as the “boss man” before whom em­
ployees should be silent, and sang cattle-driving songs when
King appeared—an apparent jibe at how King “drove” employ­
ees. In front of other employees, Washington told King he had
better hold on to his North Carolina home as the last manager
“didn’t make it.” On October 11, Washington used obscene
language in complaining to King that certain work had not been
done prior to his shift and suggested that King did not know
how to do his job. Respondent’s employee handbook includes,
as impermissible conduct, “insubordination, including improper
conduct toward a supervisor or manager.” Washington bla­
tantly breached this rule by his overall conduct toward King.
Evidence was presented showing that employees had been dis­
ciplined for inappropriate conduct toward each other. It is
axiomatic that similar conduct toward a supervisor would be
viewed even more seriously. Respondent has, therefore, shown
that it “has a rule . . . and that the rule has been applied to em­
ployees in the past.” Avondale Industries, 329 NLRB 1064.
That showing is not, however, dispositive of the issue in the
instant case. The Board has held that an employer does not
meet its Wright Line burden by showing it would be reasonable
to discharge an employee for his conduct; an employer must
show it would have discharged the employee even in the ab­
sence of protected activity. Becker Group, Inc., 329 NLRB
103 (1999). Respondent must also persuasively demonstrate
not only that it could have discharged Washington for his con­
tumacious behavior but that it would have done so even in the
absence of changed management.
In support of his argument that Washington would not have
been suspended or discharged but for the management changes
resulting from employees’ union activity, counsel for the Gen­
eral Counsel presented evidence assertedly demonstrating dis­
parate treatment. The evidence consisted primarily of frequent
instances of profanity among employees in the workplace that
did not result in discipline or resulted in discipline less severe
than discharge. The General Counsel also argues that Wash­
ington’s profanity and disrespectful comments of October 11
occurred in a context of protected activity as Washington
sought to discuss working conditions with King and therefore
deserves a mantle of protection. Marion Steel Co., 278 NLRB
897, 900 (1986). Even assuming Washington’s use of profanity
to King was uttered in the heat of presenting the concerted pro­
tected concerns of the press crew, Washington went beyond
that and insulted King’s managerial ability, saying that if King
knew how to do his job, he would know Washington was a
good operator. This disparagement was not spoken in the con-
text of protected concerted activity but in response to King’s
criticism of Washington’s performance. Moreover, Washing-
ton’s October 11 behavior was only one instance in a series of
disrespectful actions toward the manager, none of which other
conduct was even arguably in the context of concerted pro­
tected activity.
Evidence revealed that Respondent regarded disrespect to-
ward supervisors very seriously. Respondent’s employee
handbook cites “improper conduct toward a supervisor or man­
ager” as impermissible. Respondent suspended employee
Freeze for yelling and swearing at a manager and required he
FRESNO BEE 1185
take anger management instruction on penalty of discharge.
The General Counsel and the Charging Party argue that the
treatment afforded Freeze underscores the unequal discipline
meted to Washington. I cannot agree. Washington, unlike
Freeze, engaged in an ongoing and extended demonstration of
deliberate disrespect toward King. The General Counsel did
not present evidence of any employee behavior even approxi­
mating Washington’s. Respondent argues, and I find, that any
arguable disparity in treatment between Washington and other
irascible employees is attributable to the severity and the target
of Washington’s misconduct. The General Counsel’s examples
of disparate treatment are, therefore, inapposite.
Counsel for the General Counsel argues, essentially, that
King had an obligation to announce to employees his sensitivity
to disrespectful behavior so that employees might adjust their
conduct accordingly, pointing out that King neither made clear
to Washington what he found offensive nor sought better com­
munication. There is no requirement under Board law that a
supervisor do so, but a failure to follow an established progres­
sive discipline format may be indicative of unlawful intent. I
have considered King’s failure to warn Washington as evidence
of harsher treatment than that formerly accorded employees.
However, I find Washington’s behavior was so obviously and
openly disrespectful that Respondent could reasonably perceive
it to be intentional if not malicious. There is no evidence that
Washington or any other employee ever directed such behavior
toward other supervisors, and there is no evidence that Respon­
dent would have tolerated it if an employee had. Washington’s
behavior toward King constitutes egregious misconduct in vio­
lation of established workplace rules. The Board does not
question an employer’s “discretion to bypass progressive disci­
pline and impose more severe discipline on employees, includ­
ing suspension and discharge, for egregious violations of its
work rules.” Cotter & Co., 331 NLRB 787 (2000). Accord­
ingly, I find that Respondent has met its burden of showing that
Washington would have been suspended and discharged for his
misconduct even if there had been no union activity and no
changed management, and I shall dismiss the allegations of the
complaint relating to Washington.
5. The suspension and final warning of Kloss and the discharge
of Aguirre
Respondent’s move to rein in sick leave use began prior to
King’s employment. At Owen’s direction, Van Der Muelen
investigated sick leave use, and in January gave warning no­
tices to employees who took more than the regulation 10 days
in 1998. In addition to employees Kloss and Aguirre, employ­
ees Gamboa, Flores, and Meyers received warning notices.
Kloss had received warning notices and doctor’s note restric­
tion previously in 1986 and 1989. There is no suggestion that
those disciplinary actions were unlawfully motivated. When he
received a warning notice in January, he had been absent 14
days because of reported sickness in the preceding year. After
his January warning notice, Kloss continued to use excessive
sick leave. He was absent for 11 sick days in 1999, and in 2000
7 sick days through May 2000. On June 4, 2000, King gave
Kloss a final warning and 3-day suspension, telling him that he
considered him a top employee and that his only problem was
sick leave usage. Thereafter, through the date of his testimony,
Kloss used no sick leave. Hearing a rumor that Kloss was
afraid to use sick leave, sometime in March 2001, King told
him he should not come to work sick, that he should use sick
leave if necessary.
Aguirre also took more than 10 days leave for sickness in
1998 and received a warning notice in January from Van Der
Muelen. Between that warning and August 18, Aguirre was
absent 8 days on sick leave. On August 18, Aguirre was given
a final warning regarding his excess absenteeism, which noted
that he had failed to bring in the required doctor’s certificate in
six of the instances and that the sick leave appeared tied to days
off. Aguirre incurred two additional sick days in November,
and King told him he was expected to improve his attendance.
In January and April 2000, Aguirre was absent for sickness 4
days and 1 day, respectively. On April 12, 2000, Aguirre was
given a written indefinite work suspension, which was reduced
to 5 days upon King’s verification of Aguirre’s doctor’s notes.
The following month, Aguirre missed 2 additional days when
his father had surgery, another 2 in June 2000, and 2 days of
bereavement leave in July 2000. By September 12, 2000,
Aguirre had been absent from work for 12 days of that year.
On September 21, 2000, he was terminated for excessive absen­
teeism.
There is nothing in the effectuation of Kloss or Aguirre’s
discipline for absenteeism that shows either antiunion animus
or management action fitting within the “low morale” theory.
There is clear evidence of a past practice of issuing warning
notices for excessive absenteeism. In order to show a departure
from past practice, the General Counsel would have to show
that in the past, even though employees persisted in absentee-
ism once warned, Respondent nevertheless did not proceed
with further and progressive discipline. The General Counsel
has not shown that. It is true that there is no evidence of sus­
pensions and discharges due to absenteeism, but that alone does
not establish disparate treatment. It may well be that previous
employees, having been warned, corrected their leave use so as
to avoid further discipline. Certainly, Kloss did following his
suspension, and there is no evidence that Gamboa, Flores, and
Meyer did not. It is, in fact, illogical to think that Respondent,
having specifically warned employees about attendance, would
not take further disciplinary action up to and including dis­
charge if its warnings were ignored. Kloss and Aguirre did not
correct their absenteeism, and they suffered the consequences.
There is no basis for inferring discriminatory intent or disparate
treatment from this sequence of events. Counsel for the Gen­
eral Counsel argues that Aguirre had compelling family reasons
to miss work. That may be true. It may even be true that Re­
spondent was insensitive to Aguirre’s family problems, but that
is not the issue. The Board will not substitute its judgment for
the employer’s as to what constitutes appropriate discipline. I
find excessive sick leave use is not a trivial or insubstantial
employment concern,76 and there is no evidence of discrimina­
tory motive in Kloss or Aguirre’s discipline.
While King’s having administered final discipline might
raise a suspicion that it was more strictly dispensed, “mere
76 See Detroit Paneling Systems, Inc., supra at 1170 fn. 6.
1186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
suspicion cannot substitute for proof” of unlawful motivation.
Frierson Building Supply Co., supra at 1024. Accordingly, I
find the General Counsel failed to meet the Wright Line burden
of establishing a prima facie case that Kloss and Aguirre were
disciplined because of their or others’ union activity, and I shall
dismiss the allegations of the complaint relating to Kloss and
Aguirre.
C. The 8(a)(5) Allegations
The General Counsel argues that in conformity with Eugene
Iovine, Inc., 328 NLRB 294 (1999), an employer is obligated to
notify its employees’ bargaining representative and bargain to
impasse before implementing any form of employee discipline.
Respondent admittedly gave no notification to the Union of its
intent to terminate or otherwise discipline the employees named
in the complaint, and, if the General Counsel’s theory is cor­
rect, Respondent has thereby violated its bargaining obligation.
The question is whether Respondent had any such duty.
An employer’s alteration of existing terms and conditions of
employment without prior discussion with its employees’ bar-
gaining representative is a “circumvention of the duty to nego­
tiate which frustrates the objectives of Section 8(a)(5) much as
does a flat refusal.” NLRB v. Katz, 369 U.S. 736, 743 (1962).
Indeed, unilateral conduct is so destructive to the collective-
bargaining process that a showing of subjective bad faith by the
employer is unnecessary to establish a violation. The Board
and the courts have applied Katz to bar unilateral conduct by
employers in a wide variety of situations.77 In each situation,
the unilateral conduct was found unlawful “because a condition
of employment had been unilaterally changed . . . the vice in­
volved . . . [being] that the employer has changed the existing
conditions of employment.” Daily News of Los Angeles, 315
NLRB at 1238. In Daily News, the Board cited NLRB v.
Dothan Eagle, Inc., 434 F.2d 93, 98 (5th Cir. 1970), with ap­
proval as setting a standard for whether an unlawful change has
been implemented, which “neither distinguishes among the
various terms and conditions of employment on which an em­
ployer takes unilateral action nor [discriminates] on the basis of
the nature of a particular unilateral act. It simply determines
whether a change in any term and condition of employment has
been effectuated . . . and condemns the conduct if it has.” The
focus, then, in discussing the 8(a)(5) allegations of this case
must be on whether changes occurred in any term and condition
of employment by Respondent’s implementation of employee
discipline.
Employee discipline is unquestionably a mandatory subject
of bargaining,78 and any alteration of a disciplinary system is
also a mandatory subject of bargaining.79 The General Coun­
sel contends that Respondent exercised considerable discretion
in disciplining its employees and is therefore required to notify
and, upon request, bargain to impasse with the Union over each
and every imposition of discipline. Eugene Iovine, Inc., supra,
77 See Daily News of Los Angeles, 315 NLRB 1236 (1994), for a dis­
cussion of prohibited unilateral changes.
78 Crestfield Convalescent Home, 287 NLRB 328 (1987); Ryder Dis­
tribution Resources, 302 NLRB 76 (1991).
79 Pepsi-Cola Bottling Co., 330 NLRB 1025 (2000); Van Dorn Plas­
tic Machinery Co., 265 NLRB 864 (1982.)
and Adair Standish Corp., 292 NLRB 890 (1989), enfd. in rele­
vant part 912 F.2d 854 (6th Cir. 1990), also cited by counsel,
deal with an employer’s obligation to bargain about discretion­
ary actions affecting terms and conditions of employment. In
Iovine, the Board, citing Katz, held that the decision to reduce
employee hours involved management discretion and required
the employer to bargain with the newly certified union. The
Board specifically noted that the employer in Iovine “failed to
establish a past practice and further failed to establish that its
. . . reduction of hours was consistent with its conduct in prior
years.” In Adair, the Board noted that the employer’s determi­
nation as to which employees would be affected by its occa­
sional economic layoffs was discretionary. In Iovine, there was
a demonstrable change from preceding practices and in Adair
there was no established method for determining when layoffs
would occur or which employees would be selected.
While the General Counsel is correct in pointing out that the
discipline administered to unit employees by Respondent is, at
least in part, discretionary, applying Iovine and Adair to this
case reveals significant differences. Employee discipline, re­
gardless of how exhaustively codified or systematized, requires
some managerial discretion. The variables in workplace situa­
tions and employee behaviors are too great to obviate all discre­
tion in discipline. Here, however, Respondent maintains de-
tailed and thorough written discipline policies and procedures
that long antedate the Union’s advent. The fact that the proce­
dures reserve to Respondent a degree of discretion or that every
conceivable disciplinary event is not specified does not alone
vitiate the system as a past practice and policy. The General
counsel does not contend that Respondent’s discipline policies
were unilaterally altered or unlawfully established, and the
Union made no such accusation during negotiations.80 Rather,
the General Counsel asserts that notwithstanding the legality of
the long-established policies, inasmuch as the policies provide
for managerial discretion and as Respondent exercises discre­
tion in implementing the policies, i.e., by setting the type or
degree of individual discipline, it must notify and give the Un­
ion an opportunity to bargain over every instance of discipline
from oral warnings to terminations. There is no evidence that
Respondent did not apply its preexisting employment rules or
disciplinary system in determining discipline herein.81 There-
fore, Respondent made no unilateral change in lawful terms or
80 In his brief, counsel for the Charging Party argues that King insti­
tuted an entirely new disciplinary system with no “guideposts or criteria
in common with the prior regime of just cause and progressive disci­
pline.” The Charging Party cites no specific changes, but essentially
relies on the fact that increased numbers of discharges occurred after
the Union’s advent. Without more, the increased numbers cannot sup-
port findings of animus or disciplinary system changes. No credible
evidence was adduced to show prior condonation of the type of mis­
conduct targeted by Respondent’s discipline herein or any change of
rules.
81 The General Counsel essentially argues but cites no authority for
the proposition that employees’ ignorance of the established discipli­
nary system meant there was no system. I do not find it necessary to
resolve the question of whether all employees were given employee
handbooks. At least one of the General Counsel’s witnesses was, and
there is no credible evidence to controvert Respondent’s assertion that
employees were given a handbook upon being hired.
FRESNO BEE 1187
conditions of employment when it applied discipline.82 That is
true even though the discipline may have been tightened. See
Bath Iron Works Corp., 302 NLRB 898, 901 (1991), where the
Board cited with approval the finding of Trading Port, 224
NLRB 980 (1976), that where the standards [of productiv­
ity/efficiency] and sanctions remained the same, the related
“tightening of the application of existing disciplinary sanctions
did not require bargaining with the union.”83
While Respondent has no obligation to notify and bargain to
impasse with the Union before imposing discipline, Respondent
has an obligation to bargain with the Union, upon request, con­
cerning the discharges, discipline, or reinstatement of its em­
ployees. The law is clear that it is unlawful for an employer to
refuse to bargain with respect to the termination or reinstate­
ment of employees. Parker Transport, Inc., 332 NLRB 547
(2000), citing Fibreboard Paper Products v. NLRB, 379 U.S.
203, 209–210 (1964); Ryder Distribution Resources, 302
NLRB 76 (1991). A union may, however, waive its right to
bargain about a mandatory subject if it does not request bar-
gaining. Parker Transport, Inc., supra. Here, the evidence
shows that although the Union did not make a formal demand
for bargaining, it protested Respondent’s termination of em­
ployees and demanded their reinstatements, which can be taken
as requests to bargain about those mandatory subjects. The
Union did not, therefore, waive any right to bargain about the
terminations or reinstatements of employees Barrientez, Evans,
Otero, and Washington.84 However, the credible evidence also
shows that Respondent never refused to bargain regarding the
terminations and/or reinstatements of those employees. Rather,
Respondent’s representatives discussed Barrientez’ termination
with Cagle, and Ford professed his willingness to meet and
bargain with the Union about other terminations. There is no
credible evidence that Respondent refused to meet its bargain­
ing obligations in this regard.
Accordingly, the General Counsel has not met its burden of
proving that Respondent violated Section 8(a)(5) and (1) of the
82 See Cotter & Co., supra, where the Board, citing Great Western
Produce, 299 NLRB 1004, 1005 (1990), noted that “the discipline or
discharge of any employee violates Sec. 8(a)(5) if the employer’s
unlawfully imposed rules or policies were a factor in the discipline or
discharge”; Van Dorn Plastic Machinery Co., supra at 3, where the
Board stated: “the notification and enforcement of a new [absentee
control] system is undeniably still a unilateral change in terms and
conditions of employment.” (Emphasis added.) Dynatron/Bondo Corp.,
324 NLRB 572, 573 (1997), where discipline of employees who vio­
lated a “unilaterally instituted new rule” violated Sec. 8(a)(5) of the
Act. In an analogous situation, the Board noted that the “critical dis­
tinction” in the fact situations of Daily News, supra, and American
Packaging Corp., 311 NLRB 482 (1993), and Stone Container Corp.,
269 NLRB 1091 (1984), was that “the latter two employers applied the
preexisting system for granting raises while the [Daily News] did not.”
Daily News, supra at 1240–1241.
83 Although not alleged in the complaint, in his brief, counsel for the
General Counsel argues that stricter enforcement of preexisting rules is
a unilateral change that must be bargained to impasse with the Union
prior to implementation. I cannot accept counsel’s position as Bath
Iron Works Corp, supra, and Trading Port, supra, provide contrary
authority.
84 See American Diamond Tool, 306 NLRB 570 (1992).
Act by issuing discipline without first notifying the Union and
affording it an opportunity to bargain over the discipline. The
General Counsel also has not met the burden of proving that
Respondent violated Section 8(a)(5) of the Act by refusing to
bargain with the Union regarding the terminations and/or rein-
statements of employees. I shall dismiss these allegations of
the complaint.
The consolidated complaint also alleges that Respondent,
without prior notice to or bargaining with the Union, imposed a
new documentation requirement on employees seeking be­
reavement leave, the implementation of which resulted in Fal­
con’s terminating his employment. Respondent’s employee
handbook clearly specifies the circumstances under which an
employee is entitled to claim bereavement leave. There is no
contention that the provision is unlawful as set forth or applied.
There is no contention that the circumstances occasioning Fal­
con’s request for bereavement leave on September 21 met Re­
spondent’s eligibility requirements or that Falcon was, in fact,
entitled to bereavement leave.
The General Counsel’s theory is essentially that Respondent,
although free to apply the restrictions of the bereavement leave
provision, had no policy or procedure requiring documentation
of eligibility. Any such requirement constituted a change to the
provision, and Respondent could not require employees to
demonstrate they met the provision’s requirements when re-
questing bereavement leave without first notifying the Union
and bargaining over the change. According to the General
Counsel, Respondent’s demand for documentation or verifica­
tion of eligibility from Falcon constituted an unlawful unilateral
change, and when Falcon was required to submit documenta­
tion before returning to work, he was forced to accede to
unlawfully imposed conditions in order to work. When he
resigned rather than work under the allegedly unlawful condi­
tions, the General Counsel argues that he was constructively
discharged.
Credible evidence shows that Respondent had an established
practice of requiring employees to provide information that
they met the terms of the bereavement leave provision. While
Respondent may, prior to Falcon’s request, have been satisfied
with oral employee communications regarding relationship to
the deceased and location of the funeral, the fact that Respon­
dent required more concrete verification from Falcon does not,
in my opinion, constitute a unilateral change. Respondent did
not abandon its rather informal verification approach to be­
reavement leave or change any of its terms. When faced with a
questionable request for bereavement leave, Respondent simply
required, ad hoc, more specific and verifiable information from
Falcon. A violation of the duty to bargain by unilateral change
requires material and substantial changes in employees’ terms
and conditions of employment. Katz, supra. In Bath Iron
Works, supra, the Board stated: “When changes in existing
plant rules . . . constitute merely particularizations of, or de-
lineations of means for carrying out, an established rule or prac­
tice, they may in many instances be deemed not to constitute a
‘material, substantial, and significant’ change. Only changes of
1188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this magnitude trigger a duty to bargain under the Act.”85 Here,
Respondent’s requirement of additional verification in light of a
suspicious request for leave is not a material or substantial
change in its bereavement leave provision but rather an exercise
of its right to police and administer the existing bereavement
leave terms, which right is implicit in the bereavement leave
provision. See Optica Lee Boringuen, Inc., 307 NLRB 705,
723 (1992), where the Board affirmed the judge’s finding that
the employer’s revision of how employees justify absences
merely clarifies procedures implicit in the leave rules. As the
request to Falcon for additional information was not unlawful,
it follows that Falcon’s refusal to accede to it did not make his
consequent self-termination unlawful.86 Accordingly, Respon­
dent did not violate Section 8(a)(5) and (1) of the Act in this
respect, and I shall dismiss the allegations of the complaint
relating to Falcon.
85 Situations that do not activate the duty to bargain include installa­
tion of a timeclock in place of a card system, Rust Craft Broadcasting,
225 NLRB 327 (1976); installation of a timing device to measure pro­
ductivity, Trading Port, supra; implementation of an oral test as part of
an established training program, UNC Nuclear Industries, 268 NLRB
841 (1984); installation of timeclock, Bureau of National Affairs, 235
NLRB 8 (1978); change of method to inform management of early
leaving from oral to written, Goren Printing, 280 NLRB 1120 (1986).
86 Employee discipline or discharge violates Sec. 8(a)(5) if the em­
ployer has unlawfully implemented work rules or policies, which were
a factor in the discipline or discharge. Flambeau Airmold Corp., 334
NLRB 165, 167 (2001); Great Western Produce, 299 NLRB 1004,
1005 (1990). As I have found that Respondent did not unlawfully
require verification of Falcon’s bereavement, it is unnecessary to reach
the question of whether his termination constituted a constructive dis­
charge.
CONCLUSIONS OF LAW
1. By suspending David Otero on September 28, 1999, Re­
spondent has engaged in unfair labor practices affecting com­
merce within the meaning of Section 8(a)(1) and (3) and Sec­
tion 2(6) and (7) of the Act.
2. By discharging David Otero on September 29, 1999, Re­
spondent has engaged in unfair labor practices affecting com­
merce within the meaning of Section 8(a)(1) and (3) and Sec­
tion 2(6) and (7) of the Act.
3. Respondent has not violated the Act as otherwise alleged
in the complaint.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
Respondent having discriminatorily suspended and dis­
charged employee David Otero, it must offer him reinstatement
and make him whole for any loss of earnings and other bene­
fits, computed on a quarterly basis from date of discharge to
date of proper offer of reinstatement, 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). Respondent also must ex­
punge from its files any reference to the unlawful suspension
and discharge of David Otero and thereafter notify him in writ­
ing that this has been done and that the suspension and dis­
charge will not be used against him in any way.
[Recommended Order omitted from publication.]