Publix Super Markets, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 2006

347 N.L.R.B. 1434 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 124
1434
Publix Super Markets, Inc. and United Food &
Commercial Workers International Union1 and
United Food & Commercial Workers Local
1625 and Tarvis Hooks and Joaquin Garcia and
Edgar Linarte. Cases 12–CA–21391–3, 12–CA–
21391–4, 12–CA–21495–7, 12–CA–21553–3, 12–
CA–21958, 12–CA–22174, 12–CA–22277–2, 12–
CA–22277–3, 12–CA–20429, 12–CA–22059, 12–
CA–21172–1, 12–CA–21172–2, and 12–CA–
21228
August 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 28, 2003, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, and a reply
brief, and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions
only to the extent consistent with this Decision and Or-
der,3 and to adopt the Order as modified4 and set forth in
full below.
Introduction
The unfair labor practices alleged in this case arose out
of the Union’s long-term, off-and-on campaign to repre-

1 We have amended the caption to reflect the disaffiliation of the
United Food and Commercial Workers International Union from the
AFL–CIO on July 29, 2005.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. In addition, some of the Respondent’s
exceptions imply that the judge’s rulings, findings, and conclusions
demonstrate bias and prejudice. On careful examination of the judge’s
decision and the entire record, we find that the Respondent’s conten-
tions are without merit.
3 We find it unnecessary to pass on the judge’s finding that various
statements made during the latter part of December 2001 by Distribu-
tion Manager Jack Mosko and Labor Relations Manager Mark Codd
constituted threats that employees would lose jobs and benefits if they
selected the Union as their bargaining representative. These findings
are cumulative of other violations we have affirmed in this case and
would not materially affect the remedy.
4 We shall modify the judge’s recommended Order both to comport
with the violations found herein and in accordance with our decisions
in Indian Hills Care Center, 321 NLRB 144 (1996), and Ferguson
Electric Co., Inc., 335 NLRB 142 (2001).
sent the Respondent’s warehouse employees. The events
at issue occurred during the period from June 1999
through May 2002.
For the reasons discussed below, we unanimously
agree: (1) to adopt the judge’s findings of various 8(a)(1)
violations that were not excepted to; (2) to reverse the
judge’s finding of an 8(a)(1) violation that was based on
precedent that has since been overruled; (3) to adopt the
judge’s finding that the Respondent violated Section
8(a)(1) by applying its bulletin board policy in a dispa-
rate manner; (4) to adopt the judge’s finding that the Re-
spondent violated Section 8(a)(1) by threatening to disci-
pline and/or discharge employees Joaquin Garcia and
Tarvis Hooks for engaging in concerted activity; and (5)
to adopt the judge’s finding that the Respondent violated
Section 8(a)(3) by disciplining, and ultimately discharg-
ing, employee Luis Pacheco.
Chairman Battista and Member Liebman also agree
with the judge’s finding that the Respondent violated
Section 8(a)(1) by threatening to discharge Pacheco for
engaging in union activities. (Member Schaumber sepa-
rately dissents on this issue.) Chairman Battista and
Member Schaumber, however, reverse the judge’s find-
ing that the Respondent violated Section 8(a)(1) by ask-
ing employees to report other employees’ union activi-
ties. (Member Liebman separately dissents on this is-
sue.)
A. The 8(a)(1) Allegations
The Respondent excepts to a number of unfair labor
practices found by the judge, but it does not present any
argument or grounds for disputing the judge’s findings.
Specifically, the judge found that the Respondent vio-
lated Section 8(a)(1) by the following conduct:
(1) Supervisor Alvin Pratt’s threats, in late July
or early August 1999, that the plant would
close and/or that the work would be re-
moved if the employees selected the Union
as their bargaining representative;
(2) Department Head Desmond Tice’s threats,
about late July 1999 and again about Sep-
tember or October 1999, to deny employ-
ment opportunities (specifically, the oppor-
tunity to transfer to truckdriver positions) if
the employees selected the Union as their
bargaining representative;
(3) Supervisor Luis Funes’ threats, in mid-
October 2001, of discharge and unspecified
reprisals because employees filed a lawsuit
regarding terms and conditions of employ-
ment;
PUBLIX SUPER MARKETS 1435
(4) Various unnamed security guards’ prohibi-
tion, since mid-November 2001, on pro-
union employees parking in the Respon-
dent’s lot while handbilling;5
(5) Funes’ threats, about February 7, March 12,
and May 29, 2002, of discharge because of
employees’ union activities, and his crea-
tion of an impression of surveillance;
(6) Department Manager Josue Cardona’s and
Assistant Department Head Keith Hanker-
son’s threats, about December 2001, that
employees would lose the ability to adjust
grievances with their supervisors if the em-
ployees selected the Union as their bargain-
ing representative; and,
(7) Human Resource Investigator Tanya
Brown’s denial, on May 27, 2002, of em-
ployee Joaquin Garcia’s request for a co-
worker representative at an investigatory
interview.
With the exception of the last of these allegations, we adopt
these findings in the absence of argument.6 Section
102.46(b)(2) of the Board’s Rules (“Any exception . . . not
specifically urged shall be deemed to have been waived.”).
See, e.g., Elevator Constructors Local 91 (Otis Elevator
Co.), 345 NLRB 925 fn. 2 (2005).
Even in the absence of specific argument, however, we
reverse the judge’s finding that the Respondent violated
the Act by denying Garcia’s request for a coworker rep-
resentative at an investigatory interview. The judge
found the violation by applying Epilepsy Foundation,7
which extended Weingarten8 to unrepresented employ-
ees, entitling them, on request, to have a coworker repre-
sentative present at investigatory interviews that they
reasonably believe could lead to discipline. However,
Epilepsy Foundation was overturned in IBM Corp., 341
NLRB 1288 (2004). Because, under our current law,
Garcia was not entitled to a coworker representative dur-
ing his investigatory interview, we cannot find that his
rights were violated when Brown denied his request for
such a representative. Thus, in light of IBM Corp., we

5 In finding this violation, we rely on the fact that the no-parking rule
was disparately applied to prounion handbillers. We do not pass on
whether union agents who were not employed by the Respondent had a
right to be on its property.
6 Further, the Respondent’s exceptions to these findings are based on
the Respondent’s disagreement with the judge’s credibility determina-
tions. As stated in fn. 2, supra, we find no basis for reversing the credi-
bility findings.
7 Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000),
enfd. in relevant part 268 F.3d 1095 (D.C. Cir. 2001), cert. denied 536
U.S. 904 (2002).
8 NLRB v. J. Weingarten, 420 U.S. 251 (1975).
hold that the Respondent’s refusal to grant Garcia’s re-
quest for a representative did not violate the Act.
The judge correctly found that, during the summer of
1999, the Respondent violated Section 8(a)(1) by apply-
ing its bulletin-board posting policy in a disparate man-
ner. Relying on Hale Nani Rehabilitation & Nursing, 326
NLRB 335, 336 (1998), in which the Board permitted an
employer to engage in literature distribution on its prop-
erty while prohibiting employee distribution, the Re-
spondent contended that it permitted only production
information and other work-related postings by its man-
agers.9 Nevertheless, the judge credited testimony that
employees repeatedly posted offers to sell personal items
like homes and cars, and that such postings were not re-
moved. In light of this evidence, the judge rejected the
Respondent’s argument that its policy was similar to that
of Hale Nani, supra. In these circumstances, we agree
with the judge that the Respondent acted unlawfully by
disparately removing prounion postings from its bulletin
boards.10 See Holly Farms Corp., 311 NLRB 273, 274
(1993), enfd. 48 F.3d 1360 (4th Cir. 1995); Bon Marche,
308 NLRB 184, 185 (1992).
The judge also found that the Respondent, through
Mosko, violated Section 8(a)(1) by threatening to disci-
pline and/or discharge employees Joaquin Garcia and
Tarvis Hooks for engaging in protected concerted activ-
ity. As set out in greater detail in the judge’s decision,
Mosko informed Garcia and Hooks that they would be
disciplined (and could be discharged) for dishonesty,
because he believed that they had lied to their supervisor,
Jose Diaz, about their reasons for wanting to leave their
workstations and meet with Mosko. However, the record
shows—and the Respondent concedes—that they never
misrepresented that their actual purpose was to accom-
pany and serve as witnesses to their coworker Jefferson
Jules’ conversation with Mosko about his work hours.
We affirm the judge’s conclusion that their actions in
support of Jules were protected, regardless of whether
the Respondent had a duty to allow them to attend that
meeting. As a result, Mosko’s further investigation of
Garcia’s and Hooks’ suspected misrepresentation was
based on no more than an incorrect assumption that their
purpose was rather to discuss an unrelated overtime pol-

9 The Respondent does not deny that it removed prounion materials
from its bulletin boards.
10 Chairman Battista notes that the Respondent does not contend that
it uniformly prohibited postings by outside organizations. Member
Schaumber emphasizes that the Respondent’s limitations on postings
commenced only after the start of the Union’s organizing campaign,
and the Respondent offered no business justification for the new restric-
tions. Member Schaumber does not pass on the lawfulness of posting
policies not implemented in response to Sec. 7 activities that may pro-
hibit some types of postings while allowing others.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1436
icy that Diaz had just announced. Mosko acknowledged
at the hearing that the perceived dishonesty was simply a
misunderstanding. Although no discipline resulted from
these events, Mosko never informed the employees that
he had decided not to discipline them or that the threat of
discipline was being retracted.
In evaluating the Respondent’s contention that Gar-
cia’s and Hooks’ apparent dishonesty provided the Re-
spondent with lawful reason to inform them that they
would be disciplined, we apply NLRB v. Burnup & Sims,
379 U.S. 21 (1964). There, the Supreme Court held that:
§ 8(a)(1) is violated if it is shown that the discharged
employee was at the time engaged in a protected activ-
ity, that the employer knew it was such, that the basis
of the discharge was an alleged act of misconduct in the
course of that activity, and that the employee was not,
in fact, guilty of that misconduct.
Id. at 23. The Court found that this rule appropriately
guarded the immunity of protected activity; otherwise, “the
example of employees who are discharged on false charges
would or might have a deterrent effect on other employees.”
Id.
Here, the Burnup & Sims test has been met: Garcia and
Hooks were engaged in the protected activity of attempt-
ing to assist Jules in dealing with management regarding
his work hours; Mosko knew of this activity; the basis of
the threatened discipline was Garcia’s and Hooks’ al-
leged dishonesty in the course of the protected activity;
and they were not, as the Respondent acknowledged,
guilty of the alleged dishonesty. Under these circum-
stances, we find that Mosko’s threats of discipline and
discharge against Garcia and Hooks would reasonably
tend to deter employees from engaging in protected ac-
tivity, and they therefore violated Section 8(a)(1).
The judge found that the Respondent violated Section
8(a)(1) by Mosko’s threats to discharge prounion em-
ployee Luis Pacheco for engaging in union activities
(specifically, for conduct relating to home visits to solicit
coworkers’ support for the Union), and by Mosko’s har-
assment of employees by asking them to report other
employees’ union activities. We agree with the judge that
Mosko threatened Pacheco with discharge in violation of
the Act.11 Contrary to the judge, however, we find that
Mosko did not unlawfully ask employees to report other
employees’ union activities.12
The allegations at issue arise out of an occurrence in
about mid-October 2001, in which Pacheco was sum-
moned to Mosko’s office for a meeting with Mosko,

11 Member Schaumber dissents from this finding.
12 Member Liebman dissents from this finding.
Warehouse Superintendent Joe Cox, and employee
Henry Ferguson, based on a complaint made by Fergu-
son. At the meeting, Ferguson became very angry and
agitated because employees, including Pacheco, had vis-
ited his house on multiple occasions to talk to him about
the Union. Ferguson stated that he would turn his dogs
on union organizer Steve Marrs and Pacheco if they
came by his house again. At that point, Mosko inter-
vened and stated that they were all adults and could settle
the dispute in a civilized manner.
As the judge found, Mosko then told Pacheco that mis-
representing the Respondent outside the workplace is
grounds for termination. He then told a story about his
firing of two employees for conduct away from work.
We affirm the judge’s finding that this statement by
Mosko—made in the context of a meeting regarding
complaints about Pacheco’s participation in the Union’s
home visits—constituted an unlawful threat of discharge
because of Pacheco’s protected conduct.13
Contrary to the assertion in Member Schaumber’s dis-
sent, Mosko did not simply “relate[] a story about two
other employees who had been discharged for miscon-
duct outside the workplace.” Rather, in context, the
“story” was an implied accusation that Pacheco had en-
gaged in misrepresentation and could be discharged
therefor. There is no evidence that Pacheco had misrep-
resented the Respondent during his home visits and no
evidence that Ferguson had come to Mosko to complain
about Pacheco’s misrepresentation of the Respondent.
Rather, it is clear from the record that Ferguson’s sole
concern was his perceived harassment. Thus, in the con-
text of Mosko’s unsupported implication that Pacheco
had misrepresented the Respondent in the course of his
home visits (i.e., had committed misconduct outside the
workplace), Mosko’s story was clearly a warning that
Pacheco, too, could be discharged—despite the absence
of evidence that he had engaged in any misconduct.14 In
accordance with the Board’s well-established standard,
we find that Pacheco would reasonably interpret
Mosko’s statement as a threat. See, e.g., Concepts &
Design, 318 NLRB 948, 954 (1995).

13 There is no evidence that the union supporters coerced or threat-
ened Ferguson or any other employee during home calls or otherwise
engaged in conduct that would remove their activity from the protection
of the Act.
14 According to Mosko’s own testimony, the individuals at issue
were employees who had a disagreement in the workplace, and that
they “took it across the street [and] they beat each other up.” Here, the
apparent purpose of the “story” was to inform Pacheco that he could be
discharged for misrepresenting the Respondent outside the workplace.
That Mosko would liken Pacheco’s alleged conduct to such extreme
employee behavior underscores that Mosko’s real purpose for telling
the story was to imply that Pacheco could be fired.
PUBLIX SUPER MARKETS 1437
Mosko’s other statements during the meeting, how-
ever, did not violate the Act. After describing how em-
ployees had been discharged for conduct outside the
workplace, Mosko read from the Respondent’s “Rules of
Unacceptable Conduct” the Respondent’s prohibition
against: “the intimidation, interference, disturbance, or
harassment of any associate, including but not limited to,
sexual harassment.” Mosko told Pacheco that his rule
“applied to [employees acting on behalf of] the Union as
well.” According to Pacheco, Mosko then said, “that if
there’s [sic] any problems, you know, if anybody har-
asses, any problems, that we should come to him. You
know, on either side we should come to him.” After
Mosko made this comment, Ferguson asked him how
long the Union was allowed to continue campaigning
against the Respondent. According to Pacheco, Mosko
responded that the Union was allowed to campaign as
long as it wanted, and that it even had the right to go to
employees’ houses and talk with them about the Union.
The judge found that Mosko’s request that employees
come to him in the event of harassment violated Section
8(a)(1) because it constituted a request by Mosko that
employees report the union activities of other employees
to him. We disagree with the judge’s conclusion and
find that Mosko’s statement was not a violation of the
Act.
As an initial matter, we note that Mosko’s statement
was about harassment, not about union activity per se.
Indeed, Mosko recognized that the Union was entitled to
make home visits like those about which Ferguson com-
plained. Thus, Mosko distinguished between permissible
union activity, i.e., simple solicitation, and harassment,
and made clear in his statements to Ferguson that only
the latter was grounds for discipline.
Furthermore, Mosko’s reading of the rule and request
that employees come to him were made in the face of a
harassment complaint by Ferguson, and after observing
Ferguson’s obviously angry demeanor during the meet-
ing. Thus, it is clear that Mosko more generally sought
to defuse the confrontation between employees by re-
minding those present of the Respondent’s preexisting
rules regarding their mutual obligations to each other.
The General Counsel has not alleged that this rule, on
its face, was unlawful. Mosko simply read the Respon-
dent’s rule prohibiting harassment and, by Pacheco’s
own testimony, stated that if anybody harasses others or
there are any problems, either side should come to him.
Such a neutral reading of a general work rule, prompted
by an employee’s complaint and directed to both proun-
ion and antiunion employees, is not coercive.15 Thus, we
dismiss the allegation that Mosko unlawfully requested
that employees report other employees’ union activities
to him.
Member Liebman argues that, in finding that Mosko
did not violate the Act by his recitation of the Respon-
dent’s rule prohibiting harassment, we ignore the broader
context in which those statements were made. We dis-
agree. As noted above, we have considered the overall
context in which the statements were made, i.e., an angry
confrontation between two coworkers. In addition, most
of Mosko’s statements discussed by Member Liebman
were neither alleged nor found to be unlawful.16 Mosko
was faced with an employee dispute, and his reading of
neutral work rules was an attempt to resolve this dispute.
After considering Mosko’s allegedly unlawful comments
in the context of his recognition of the Union’s right to
campaign and to conduct home visits, we find that
Pacheco could not reasonably have understood Mosko’s
comments about harassment to have constituted an
unlawful request that employees report to him the union
activities of others.
Our dissenting colleague says that the complaining
employee (Ferguson) suggested that the Respondent fire
union supporters. Although Mosko did not expressly
disavow this suggestion, he did expressly reaffirm em-
ployee rights to support the Union. Further, the fact that
Mosko expressed antiunion views does not change the
result, for these views are protected by Section 8(c).
B. The 8(a)(3) Allegations
The judge found that the Respondent violated Section
8(a)(3) of the Act by repeatedly disciplining and eventu-
ally discharging prounion employee Luis Pacheco. We
agree with the judge, although our decision is based on
narrower grounds.
Between May 3, 2001, and March 15, 2002, Pacheco
was disciplined on four occasions under the Respon-
dent’s progressive disciplinary system. Under this sys-
tem, employees were subject to the following successive

15 Member Liebman, noting that Ferguson threatened to turn his
dogs on union organizer Marrs, argues in her dissent that the Respon-
dent did not warn Ferguson for his conduct. However, it is undisputed
that, immediately after Ferguson made this statement, Mosko inter-
rupted Ferguson and said to him that they should settle the dispute in “a
civilized manner.” Thus, the record demonstrates, despite our dissent-
ing colleague’s contention, that Mosko did not ignore Ferguson’s
threatening statement insofar as it was directed at Pacheco.
16 As discussed above, however, Chairman Battista agrees with the
judge that Mosko’s comments regarding misrepresentation as grounds
for termination were coercive. He takes this finding into consideration
when examining the broader context in which Mosko’s comments were
made.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1438
levels of discipline: oral warning; written warning; final
warning; and suspension and/or discharge.
On May 3, 2001, Pacheco was given an oral warning
for having five “Lates.”17 It is undisputed that Pacheco
was late on all the days identified as occurrences leading
to the warning, with the final occurrence coming on
April 20, 2001.18 On May 24, 2001, after one more Late,
Pacheco was issued a written warning for lack of punctu-
ality. Again, there is no dispute that Pacheco was late on
the day in question.
Pacheco was disciplined for two further incidents. He
was issued a final warning on February 14, 2002, for a
misshipment, which consists of sending merchandise—in
this case, a pallet of apple juice—to the wrong store. Fi-
nally, he was suspended on March 14, 2002, and dis-
charged the following day, after two or three pallets of
merchandise were found on the loading dock shortly af-
ter Pacheco’s March 13 shift ended, with no explanation
or instructions for the next shift. With regard to both of
these latter incidents, there are factual disputes that the
judge did not find necessary to resolve.
C. Wright Line Analysis
We analyze allegations of discipline and discharge be-
cause of union activities under the burden-shifting
framework of Wright Line.19 The Respondent contends

17 Under the Respondent’s attendance and punctuality policy, each
“Late” is either a day on which an employee punched in 8 or more
minutes after the start of the shift or a combination of three “K-Lates,”
which are days on which the employee punched in 3–7 minutes late.
Employees are subject to discipline under the policy if they have five or
more Lates during a 6-month performance evaluation period (January–
June and July–December of each year). Each subsequent Late within
the 6-month period moves the employee to the next step of progressive
discipline. Thus, if the first five Lates result in an oral warning (i.e., if
the employee is not already past the first step of progressive discipline),
the sixth Late should result in a written warning, the seventh Late in a
final warning, and the eighth Late in suspension and/or termination of
employment.
18 The judge found it significant that Pacheco’s oral warning oc-
curred 2 weeks after his fifth Late, but only 1 day after Pacheco at-
tempted to serve as coworker representative for another employee at a
meeting with Mosko. Mosko and Supervisor Keith Thomas both testi-
fied that Thomas had not been told of this incident when he issued the
oral warning to Pacheco the following day. As discussed below, we
find sufficient evidence of inconsistency and disparate treatment of
Pacheco to support the violation. Thus, we need not rely on the timing
of the warning in relation to Pacheco’s May 2 protected activity.
19 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983). To meet his initial
burden of showing the Respondent’s unlawful motivation, the General
Counsel must demonstrate that the Respondent had antiunion animus;
that Pacheco engaged in union activities; that the Respondent knew of
these activities; and that the Respondent took adverse action against
Pacheco. If the General Counsel makes this initial showing, the burden
of persuasion then shifts to the Respondent to demonstrate that it would
that it did not have antiunion animus and that the adverse
actions it took against Pacheco were unrelated to his un-
ion activities.20
1. Animus
Like the judge, we find that the Respondent’s many
8(a)(1) violations, discussed above and described more
fully in the judge’s decision, amply demonstrate the Re-
spondent’s animus. These violations include threats di-
rected at Pacheco himself,21 as well as Supervisor Luis
Funes’ accurate and timely predictions of imminent ter-
minations of union supporters, including Pacheco.22 We
thus reject the Respondent’s contention and find that it
did express animus toward employees who acted in sup-
port of the Union, including Pacheco.
2. The Respondent’s defense
The Respondent asserts that each of Pacheco’s disci-
plines was legitimately based on his violations of work
rules regarding punctuality (May 3 and 24, 2001 oral and
written warnings) and his job performance failures (Feb-
ruary 14, 2002 misshipment and March 13, 2002 unfin-
ished work). Moreover, the Respondent contends that
each discipline was properly given in accordance with its
progressive discipline policy. For the reasons stated be-
low, the judge correctly concluded that the evidence fails
to support the Respondent’s contentions.
D. Applicable Standard and Overview
To rebut the General Counsel’s initial showing, the
Respondent must demonstrate that it would have disci-
plined Pacheco as it did, even in the absence of his pro-
tected activities. The Board has found that “in the ab-

have taken the same action even in the absence of the union activities.
E.g., Robert Orr/Sysco Food Services, 343 NLRB 1183 fn. 6 (2004).
20 The Respondent does not dispute that Pacheco was one of its most
vocal prounion employees and that it was aware of Pacheco’s support
for the Union. Nor does the Respondent dispute that it took adverse
action against Pacheco by disciplining and discharging him.
21 As discussed above, Member Schaumber does not join with his
colleagues in finding that Mosko unlawfully threatened Pacheco.
22 Several times, beginning shortly after the January 2002 representa-
tion election, Funes made statements to prounion employee Miguel
Marin indicating that prounion employees were about to be terminated;
soon after each statement, prounion employees were discharged. In
March 2002, Funes told Marin that “they were going to fire a big guy
from the Union.” Marin named several prounion employees he thought
Funes might be referring to (including himself); when Marin named
Pacheco, Funes responded that it was “not his turn yet.” A few days
after this conversation, Hooks was discharged. (Hooks was reinstated in
October 2002 after he filed an unfair labor practice charge regarding
the discharge; however, he was discharged again in December 2002
and again filed an unfair labor practice charge, which was pending at
the time of the hearing in this case.) Pacheco’s termination occurred
soon after Hooks’, on March 15, 2002. The judge found, and we have
affirmed above, that Funes’ statements to Marin were threats of dis-
charge for Pacheco’s and other employees’ union activity.
PUBLIX SUPER MARKETS 1439
sence of countervailing evidence, such as that of dispa-
rate treatment based on protected activity, the Respon-
dent [can meet its Wright Line burden] by demonstrating
that it has a rule . . . and that the rule has been applied to
employees in the past.” Avondale Industries, 329 NLRB
1064, 1066 (1999) (quoting Merillat Industries, 307
NLRB 1301, 1303 (1992)). However, an employer fails
to meet its burden where the evidence affirmatively
shows a lack of consistency in the employer’s application
of its disciplinary rules, and where the case for unlawful
motive is substantial. See, e.g., Septix Waste, Inc., 346
NLRB No. 50, slip op. at 3 (2006).
In defending an allegation of discriminatory disparate
treatment, the Respondent does not meet its burden
“simply by showing that examples of consistent past
treatment outnumber the General Counsel’s examples of
disparate treatment.” Avondale Industries, 329 NLRB at
1066. Rather, “the Respondent must prove that the in-
stances of disparate treatment shown by the General
Counsel were so few as to be an anomalous or insignifi-
cant departure from a general consistent past practice.”
Ibid.
The Respondent has not met its burden here. The Sep-
tix Waste factors are present here. First, as detailed be-
low, the evidence demonstrates something substantially
less than a consistent disciplinary practice sufficient to
overcome the General Counsel’s showing of discrimina-
tion. Rather, it reinforces the finding of unlawful con-
duct, because it shows atypically strict treatment of
Pacheco with regard to his punctuality, which formed the
basis for Pacheco’s oral and written warnings. Second,
the evidence of the Respondent’s unlawful motive is
strong, particularly in view of the Respondent’s threats
(by Funes and Mosko) to discharge Pacheco because of
his union activity.23 Third, the instances of disparate
treatment here were not “an anomalous or insignificant
departure from a general consistent past practice.” In-
deed, the evidence demonstrates the Respondent’s wide-
spread inconsistency in enforcing its punctuality policy.24
Under these circumstances, we find that the May 3 oral
warning and the May 24 written warning, although given
in accordance with the Respondent’s written punctuality

23 In accordance with his position that Mosko did not unlawfully
threaten to discharge Pacheco, Member Schaumber would not rely on
that finding here. Nevertheless, he agrees with his colleagues that the
Respondent’s other conduct, particularly Funes’ threats (discussed
above at fn. 22), evince the Respondent’s unlawful animus.
24 As stated above, the Respondent bears the burden of demonstrat-
ing that it would have disciplined Pacheco as it did, even in the absence
of his union activity. Consequently, ambiguity in the record evidence,
especially if it is due to the lack of explanatory documents or testi-
mony, weighs against the Respondent and negates its defense.
policy, reflected an atypically, and discriminatorily, strict
application of that policy.
E. The Respondent’s Evidence of “Consistent” Practice
In arguing that it demonstrated that it would have dis-
ciplined Pacheco for his tardiness even in the absence of
his union activity, the Respondent relies heavily on evi-
dence that a number of other employees, some of them
antiunion, were also disciplined for tardiness. However,
the Respondent’s evidence is significantly less compel-
ling than it contends. First, the Respondent offered into
evidence only the disciplinary reports, not the underlying
attendance reports and timecards; thus, we are unable to
assess whether the disciplinary reports accurately docu-
ment all of the Lates recorded on these employees’ atten-
dance reports, and whether the attendance reports re-
corded the employees as Late or K-Late (or as an ex-
cused tardy) each time that they actually arrived tardy.25
Second, even accepting at face value the Respondent’s
disciplinary reports, roughly half of the disciplined em-
ployees were not disciplined upon obtaining five Lates,
as was Pacheco. Four of the employees (Sam Tolbert,
Oaski Morales, Eddie Datuin, and Michael Steward)
were disciplined only after each had six Lates; and four
more employees (Felix Albelo, Steve Streitz, David
Gastelu, and Barbara Howard) were disciplined only
after each had seven Lates.26 In addition, after receiving
an oral warning, Thomas Harrison had two Lates and
five K-Lates before he was issued a written warning;27

25 In contrast, the General Counsel submitted a number of employ-
ees’ weekly timecards, annual attendance reports, disciplinary reports,
and semiannual performance evaluations. These documents, in con-
junction with credited testimony, demonstrate that the Respondent did
not consistently apply its punctuality policy, thus undermining the
persuasiveness of the Respondent’s proffered evidence.
For example, as described below, the record demonstrates pervasive
inconsistencies between the timecards of antiunion employee Daniel
McDuffie and his attendance reports. While the time cards appear to
demonstrate chronic tardiness, McDuffie’s attendance reports for the
same time periods show far fewer recorded Lates. The Respondent’s
habitual failure to record McDuffie’s Lates raises unanswered questions
about the general accuracy and completeness of the documentation on
which the Respondent’s proffered disciplinary reports are based, and
thus about the accuracy and completeness of the disciplinary reports
themselves.
26 Morales and Gastelu, when finally disciplined, were given written
warnings. Gastelu’s written warning, dated January 10, 2002, states that
he had been counseled for the “same or similar reason” on June 25,
2001, but no such discipline report was offered into evidence. Other
“missing” reports are specified in fn. 28, below.
27 If Harrison had been disciplined in strict compliance with the Re-
spondent’s policies, as was Pacheco, he would have received a written
warning when he was Late once more after his oral warning (i.e., when
he had six Lates in a 6-month period). Similarly, a final warning
should have followed upon his seventh Late during the 6-month period.
Such strict compliance with the policies would have resulted in suspen-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1440
and he had an additional four Lates and five K-Lates
before he was issued what appears to be a final warn-
ing.28 Seven of the nine employees named above (i.e., all
but Morales and Steward) were identified by Mosko as
individuals who he knew did not support the Union.
Thus, the Respondent’s own rebuttal evidence demon-
strates not only the inconsistent application of its punctu-
ality policy but also that application’s tendency to favor
antiunion employees.
F. Detail of the General Counsel’s Evidence of
Inconsistent Practice and Disparate Treatment
The General Counsel offered detailed evidence regard-
ing the Respondent’s inconsistent application of its punc-
tuality policy. The record is most complete with regard
to antiunion employee Daniel McDuffie’s persistent tar-
diness and the Respondent’s failure to discipline him for
it.29 Pacheco identified McDuffie as one of the openly
antiunion employees whom he saw routinely arriving at
work late without disciplinary consequences. A com-
parison of McDuffie’s 2001 attendance report against his
timecards for the same period is illuminating. His 2001
attendance report reflects only four Lates and one K-
Late, all within the last 2-1/2 months of the year. On its
face, this would not call for discipline. Significantly,
however, the punch-in times on McDuffie’s timecards
reflect that, during the second half of 2001, he was Late
41 times and K-Late an additional 12 times.30 Although
the Respondent’s utter failure to document McDuffie’s
tardiness may leave some uncertainty about whether
some apparent Lates or K-Lates should be counted, there

sion and possible termination for Harrison, rather than a written warn-
ing.
28 Harrison’s oral warning, apparently dated April 17, 2001, is not
included in the record; thus, we do not know how many Lates he was
charged with accumulating before he was issued an oral warning. Simi-
larly absent from the record are Howard’s written warning dated Octo-
ber 16, 2002 (referenced in what appears to be a second written warn-
ing—not the final warning that the Respondent’s policy called for—
issued to Howard on December 3, 2002), and Javon June’s oral warn-
ing dated July 17, 2002 (referenced in his written warning dated August
11, 2002).
29 In addition to McDuffie’s 2000–2002 annual attendance reports,
semiannual performance evaluations, and his disciplinary documents,
the record also contains copies of McDuffie’s weekly timecards, show-
ing his actual punch-in times, for the entire period from May 26, 2001,
through August 2, 2002, as well as several weeks in late August and
September 2002. In assessing whether McDuffie’s punch-in times
represent on-time or tardy arrivals, we take note of, but do not strictly
apply, the Respondent’s policy (testified to by Mosko and documented
in the Respondent’s job description for selectors and loaders) that em-
ployees may not punch in early for shifts without a supervisor’s per-
mission.
30 Moreover, the timecards appear to indicate that McDuffie was
Late five times and K-Late an additional two times between the last
week of May and the end of June 2001. None of these tardies is marked
on his 2001 attendance report.
is no escaping the overall picture: in most of 2001,
McDuffie was consistently and perpetually late to work,
and the Respondent was not concerned enough even to
document it, let alone to discipline him for it.
The Respondent’s inconsistent application of the punc-
tuality policy with respect to McDuffie continued into
2002. As of June 5, 2002, McDuffie’s 2002 attendance
report reflected 2 unexcused Lates and 10 K-Lates, total-
ing 5 Lates and justifying the issuance of discipline.
However, McDuffie’s timecards for the evaluation period
reflect that, as of that date, he actually had 9 unexcused
Lates and 13 K-Lates, totaling 13 Lates.31
The evidence of the Respondent’s uneven enforcement
of its punctuality policy with regard to other comparators
identified by Pacheco, although less overwhelming in the
absence of a full set of timecards for each individual,
fully supports the judge’s finding of disparate treatment.
Indeed, the Respondent admits that antiunion employees
Yvonne Gaddis and Cheryl Quant should have received
discipline for punctuality, based on their attendance re-
ports, but did not.32
According to Gaddis’ 2001 attendance report, between
January and June 2001, she accumulated 21 K-Lates and
1 Late. However, six of her K-Lates, dated February 8–
21, 2001, appear to have been excused. Even accepting
that these K-Lates were excused, Gaddis had accumu-
lated at least 15 other K-Lates, equivalent to 5 Lates, by
May 31, 2001. Tice admitted that Gaddis should have
been issued an oral warning. However, she was disci-
plined only after she had another Late on June 5, 2001.
When questioned about these inconsistencies, Mosko had
no explanation beyond “her manager dropped the ball.”
In 2000, Gaddis had at least five Lates in January and
February but was not issued a verbal warning until May

31 The Respondent argues that McDuffie’s attendance record does
not support a finding of disparate treatment because his starting time
had been changed without the knowledge of the supervisor who re-
corded Lates on the attendance sheet. However, McDuffie’s timecards
show such frequent tardiness that, if the punctuality policy had been
applied uniformly, he would have been terminated well before the
alleged shift change.
32 Gaddis’ and Quant’s weekly timecards are not included in the re-
cord. Thus, in assessing the discipline due to them, we rely only on the
Lates and K-Lates documented on their attendance reports. Nonethe-
less, in view of the Respondent’s failure to consistently document tardy
punch-ins on employees’ attendance reports, as described above with
regard to McDuffie, we do not know the true extent of Gaddis’ and
Quant’s actual tardiness.
The same is true of Henry Ferguson, whom Pacheco identified as
another frequently tardy employee. According to Ferguson’s 2001 and
2002 attendance reports, he had at least four Lates in each evaluation
period of 2002 (just within the disciplinary standard) and at least three
Lates in each evaluation period in 2001. Ferguson’s timecards, which
could confirm or refute Pacheco’s testimony about Ferguson’s actual
tardiness, are not a part of the record.
PUBLIX SUPER MARKETS 1441
11, after she had a sixth Late on May 10—and that warn-
ing only reported the first five Lates. Gaddis had yet an-
other Late on June 6, which should have resulted in a
final warning. However, Gaddis was not disciplined for
her sixth or seventh Late.
Cheryl Quant’s 2001 attendance report reflects 2 Lates
and 12 K-Lates (totaling 6 Lates) for the first half of the
year, but she was not disciplined for tardiness. Tice ad-
mitted that Quant exceeded the tardiness guidelines in
the first half of 2001 and should have been disciplined;
he could not explain why she was not disciplined.33
G. Conclusion Regarding Tardiness Disciplines
We find that the evidence detailed above amply dem-
onstrates the Respondent’s general inattention to docu-
mentation of, and inconsistent discipline for, tardiness by
employees other than Pacheco. Based on the Respon-
dent’s inconsistent practice and its disparate treatment of
Pacheco, we find that the Respondent did not rebut the
General Counsel’s showing that Pacheco’s tardiness dis-
ciplines were motivated by antiunion animus. Thus, we
agree with the judge that these disciplinary warnings
were unlawful.
H. Subsequent Disciplines and Discharge
Under the Respondent’s progressive discipline policy,
Pacheco’s final warning and suspension/discharge grew
out of the unlawful oral and written warnings for punctu-
ality violations, and thus, the later (and increasingly se-
vere) disciplines were also unlawful.
According to the Respondent’s policy, each type of
discipline has an “effective period,” during which further
disciplinary actions progress to the next level. The effec-
tive period is 6 months for an oral warning and 12
months for a written or final warning. Thus, after
Pacheco’s May 3, 2001 oral warning for tardiness, his
second occurrence of the same infraction within 6
months led to a written warning.34 Because that written
warning was still in effect when Pacheco’s misshipment
occurred approximately 9 months later, the misshipment
resulted in a final warning, rather than another oral or

33 Member Liebman would also rely on the Respondent’s failure,
throughout 2001 and the first quarter of 2002, to document the Lates of
Pest-Control Lead Person Paul Kennedy. Like the judge, Member
Liebman is not persuaded by Mosko’s unsupported and uncorroborated
testimony that Kennedy had no fixed schedule, in contrast to all other
employees (including the other pest-control employees). Even if Ken-
nedy’s scheduled starting time did vary, consistent enforcement of the
Respondent’s punctuality policy would require that someone with
knowledge of Kennedy’s schedule track his compliance with the
schedule, and there is no evidence that anyone did so.
34 Had Pacheco’s second infraction been different in kind than his
first infraction, the progressive discipline policy would have called for
a second oral warning, rather than a written warning.
written warning.35 Similarly, the final warning was still
in effect 1-month later, when the pallets of merchandise
were found on the loading dock, resulting in a suspension
that was converted to a discharge.
Because we find that Pacheco’s oral and written warn-
ings in May 2001 were unlawful, the final warning and
suspension/discharge were also unlawful.36 Thus, the
entire series of disciplinary actions against Pacheco, be-
ginning with his May 3, 2001 oral warning and ending
with his March 15, 2002 discharge, must be rescinded.
See Hays Corp., 334 NLRB 48, 50 (2001) (“It is well
settled that, where a respondent disciplines an employee
based on prior discipline that was unlawful, any further
and progressive discipline based in whole or in part
thereon must itself be unlawful.”).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Publix Super Markets, Miami, Florida, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Disparately applying its no-solicitation/no-distribu-
tion rule by preventing the posting of union materials,
while allowing the posting of other materials.
(b) Threatening its employees that the plant will close
if employees select the United Food & Commercial
Workers Union, Local 1625 (the Union) to represent
employees as their collective-bargaining representative.
(c) Threatening employees that the Respondent will
deny employees employment opportunities if employees
select the Union as their collective-bargaining represen-
tative.
(d) Threatening employees that the Respondent will
discharge employees and take unspecified reprisals
against them if employees try to assist fellow employees
to address work-related issues with the Respondent, if
employees file a lawsuit about terms or conditions of
employment, and/or if employees engage in other con-
certed protected or union activities.
(e) Discouraging employees from distributing proun-
ion handbills by prohibiting employees distributing

35 If Pacheco had received an oral warning for tardiness only after he
had reached six Lates, or if he had received a written warning only after
seven or more Lates, as several other employees, described above, did,
he would have restarted the progressive discipline system when the
misshipment occurred, and he would have received, at most, another
oral warning. Thus, the Respondent’s disproportionately stringent
punctuality enforcement as to Pacheco had unmistakably severe conse-
quences.
36 We need not address the substance of the final warning and sus-
pension/discharge in early 2002, particularly in light of the unresolved
state of the facts regarding those events.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1442
prounion handbills, but not those distributing antiunion
handbills, from parking in the Respondent’s parking lot.
(f) Threatening employees that they will not be able to
address grievances with supervisors if employees select
the Union as their bargaining representative.
(g) Threatening employees that they will lose wages,
jobs, and/or benefits if employees select the Union as
their bargaining representative.
(h) Implying that employees’ union activities would be
under surveillance.
(i) Issuing oral or written disciplinary warnings be-
cause employees support or assist the Union or engage in
concerted activities, or to discourage employees from
engaging in these activities.
(j) Suspending or discharging employees because em-
ployees support or assist the Union or engage in con-
certed activities, or in order to discourage employees
from engaging in these activities.
(k) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Luis Pacheco full reinstatement to his former job or if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Luis Pacheco whole, with interest, for any
loss of wages and benefits that he may have suffered as a
result of his suspension and termination.
(c) Within 14 days from the date of this Order, remove
from its files any and all references to the unlawful May
3, 2001 oral warning, May 25, 2001 written warning,
February 14, 2002 final warning, March 14, 2002 sus-
pension, and March 15, 2002 discharge of Luis Pacheco,
and within 3 days thereafter notify him in writing that
such action has been taken and that the warnings, sus-
pension, and discharge will not be used against him in
any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Miami, Florida, copies of the attached no-
tice marked “Appendix.”37 Copies of the notice, on forms
provided by the Regional Director for Region 12, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since June 1999.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.
MEMBER LIEBMAN, dissenting in part.
As the Board has explained:
[E]mployers violate Section 8(a)(1) of the Act when
they invite their employees to report instances of fellow
employees’ bothering, pressuring, abusing, or harassing
them with union solicitations and imply that such con-
duct will be punished. . . . [S]uch announcements from
the employer are calculated to chill even legitimate un-
ion solicitations, which do not lose their protection
simply because a solicited employee rejects them and
feels “bothered” or “harassed” or “abused” when fel-
low workers seek to persuade him or her about the
benefits of unionization.
Greenfield Die & Mfg. Corp., 327 NLRB 237, 238 (1998).
Contrary to the majority, I would find that Distribution
Manager Jack Mosko violated Section 8(a)(1) when he read
out loud the Respondent’s rule prohibiting harassment and
invited employees to come to him if harassment occurred.1

37 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 I join in the majority’s decision except with regard to Mosko’s
statements about harassment. I also join the majority in finding no
violation in the Respondent’s denial of Joaquin Garcia’s request for a
representative at an investigatory interview. I dissented in IBM Corp.,
341 NLRB 1288 (2004), which is the basis for dismissing this allega-
tion. Nevertheless, I recognize that the majority decision in IBM Corp.
represents current Board law. As a result, and for institutional reasons, I
join the majority. I observe that Garcia was not disciplined subsequent
to the denial of his request.
PUBLIX SUPER MARKETS 1443
The majority focuses narrowly on the facially neutral as-
pects of Mosko’s statements, missing their broader context,
which was rife with coercion.
Mosko’s statements were made at a meeting called ex-
pressly to respond to employee Henry Ferguson’s com-
plaints that the Union’s home calling constituted harass-
ment.2 During the same meeting, Mosko unlawfully
threatened to discharge employee Luis Pacheco for en-
gaging in the conduct that he was asking employees to
report. Moreover, Mosko made several statements about
the Union and its supporters which, in context, were co-
ercive, including the statement that the Union was trying
to chop Publix off at the knees and that anyone who sup-
ported the Union’s efforts to harm the Respondent should
be ashamed of himself.3
The majority errs in relying on the supposed even-
handedness of Mosko’s recitation of the rules regarding
conduct outside the workplace and on the fact that
Mosko’s request was made in response to Ferguson’s
complaint.4 As the majority itself properly acknowl-
edges, there was no evidence of any actual harassment
during the home calling by union supporters. Although
Pacheco did testify that Mosko referred to “either side”
coming to him if anybody was harassed, Pacheco also
testified that Mosko specifically told him “that it applies
to the Union.” Furthermore, although Ferguson had
threatened, in Mosko’s presence, to turn his dogs on un-
ion organizer Steve Marrs and Pacheco if they came to

2 Although the majority states that union supporters had visited Fer-
guson’s home on “multiple” occasions, they visited only twice. Only
on their second visit did Ferguson tell them that they were not wel-
come, after which they did not return.
3 The majority would not rely on these statements, even as context,
because they were not alleged or found to be independently unlawful.
In my view, these statements, whether independently unlawful or not,
are relevant evidence of coercion under the Board’s totality-of-the-
circumstances standard. Grinnell Fire Protection Systems, 328 NLRB
585, 587 (1999).
4 The majority further errs in contending that, by acknowledging
employees’ right to solicit support for the Union, Mosko alleviated the
coerciveness of the meeting and “distinguished between permissible
Union activity, i.e., simple solicitation, and harassment, and made clear
in his statements to Ferguson that only the latter was grounds for disci-
pline.” Mosko referred to the solicitors’ rights only in response to
Ferguson’s irate demand to know how long the Union was allowed to
“campaign against Publix” and Ferguson’s assertion that “if this was
happening [at another company], they would have been fired a long
time ago.” (Mosko did not respond to Ferguson’s implicit suggestion
that the Respondent fire the prounion employees.) In any event, a fac-
tual acknowledgement of the Union’s well-established right to cam-
paign hardly negates the coerciveness of this meeting: when asked what
else Mosko talked about at the meeting, Pacheco testified that “the
whole thing” was “against the Union,” including Mosko’s assertions
that the Union was trying to chop Publix off at the knees; that the Un-
ion was causing lawsuits to be filed against the Company; that the
Union was trying to hurt the Company; and that “anybody that would
support something like that should be ashamed of themselves.”
his house again, Mosko did not address his warnings
directly to Ferguson, as he had to Pacheco.5 Finally,
Mosko’s remarks were interspersed with his disparaging
comments against the Union and its supporters.
Under the circumstances, then, it would appear that
Mosko’s recitation of the rule was aimed at Pacheco and
the union supporters engaged in home calling. Thus, it
was unlawful. See, e.g., Bloomington-Normal Seating
Co., 339 NLRB 191 fn. 2 (2003), enfd. 357 F.3d 692 (7th
Cir. 2004).
MEMBER SCHAUMBER, dissenting in part.
I agree with my colleagues in all respects except one: I
would reverse the judge’s finding that Jack Mosko made
a veiled threat of discharge to Luis Pacheco when, during
an October 2001 meeting with Pacheco and Henry Fer-
guson, Mosko read from the Respondent’s rule against
misrepresentation and related a story about two other
employees who had been discharged for mis-conduct
outside the workplace.1
The meeting at issue was called to address a complaint
about purported nonworkplace misconduct by Pacheco
during the course of his home visits to employees, spe-
cifically Ferguson. Both the harassment and misrepre-
sentation rules applied to conduct outside the workplace,
including conduct that might occur during the course of
home visits, and neither rule is alleged to be facially
unlawful. Mosko simply read the rules to both employ-
ees and stated that the rules applied equally to employees
who supported or opposed the Union. His reference to
other employees who had been disciplined for nonwork-
place misconduct was not a veiled threat, but rather rein-
forced that a number of the Respondent’s rules applied to
conduct outside the workplace, and that violations of
those rules could result in discipline. Mosko did not ac-
cuse Pacheco of a violation of the misrepresentation rule,
nor did he state that Pacheco’s organizational activities

5 The majority contends that Mosko’s failure to warn Ferguson for
his threat does not undermine Mosko’s evenhandedness, because
Mosko did not ignore the threat but instead suggested that Ferguson
and Pacheco settle the disagreement “in a civilized manner.” But
plainly, Mosko did not act evenhandedly in treating Ferguson’s direct
threat of physical violence comparably to Pacheco’s nonharassing
solicitation. Even assuming that Mosko’s response to Ferguson’s initial
threat was adequate, the fact remains that, after Mosko read the no-
harassment rule, Pacheco expressly complained that Ferguson was
threatening and intimidating him, and Mosko “just ignored” Pacheco’s
complaint. Mosko’s failure to respond to Pacheco’s complaint—
especially where Mosko personally witnessed Ferguson’s threat of
violence—belies any claim that Mosko acted evenhandedly.
1 This is consistent with our decision to reverse the judge’s finding
that Mosko violated the Act when, during an October 2001 meeting
with employees Pacheco and Ferguson, he read from the Respondent’s
antiharassment policy and told the employees that either side should
come to him in the event of harassment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1444
ran afoul of it. He simply read two rules and cited in-
stances in which employees had been disciplined for
nonworkplace misconduct. In light of these circum-
stances, I don’t find Mosko’s statements to constitute
veiled threats and would dismiss this allegation.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT disparately apply our no-solicitation/no-
distribution rule by preventing the posting of union mate-
rials, while allowing the posting of other materials.
WE WILL NOT threaten you by telling you that the plant
will close if you select the United Food & Commercial
Workers Union, Local 1625 (the Union) to represent you
as your collective-bargaining representative.
WE WILL NOT threaten you by telling you that we will
deny you employment opportunities if you select the
Union as your collective-bargaining representative.
WE WILL NOT threaten you that we will discharge you
and take unspecified reprisals against you if you try to
assist fellow employees to address work-related issues
with us, if you file a lawsuit about terms or conditions of
employment, and/or if you engage in other concerted
protected or union activities.
WE WILL NOT discourage you from distributing proun-
ion handbills by prohibiting employees distributing
prounion handbills, but not those distributing antiunion
handbills, from parking in Respondent’s parking lot.
WE WILL NOT threaten you by telling you that you will
not be able to address grievances with supervisors if you
select the Union as your bargaining representative.
WE WILL NOT threaten you by telling you that you will
lose your wages, your jobs, and/or your benefits if you
select the Union as your bargaining representative.
WE WILL NOT make it appear to you that we are watch-
ing to see if you engage in union activities.
WE WILL NOT issue you oral or written disciplinary
warnings because you support or assist the Union or en-
gage in concerted activities, or in order to discourage you
from engaging in these activities.
WE WILL NOT suspend or discharge you because you
support or assist the Union or engage in concerted activi-
ties, or to discourage you from engaging in these activi-
ties.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Luis Pacheco full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Luis Pacheco whole for any loss of
earnings and other benefits resulting from his suspension
and discharge, less any net interim earnings, plus inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful disciplines and discharge of Luis Pacheco, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that the disciplines and discharge
will not be used against him in any way.
PUBLIX SUPER MARKETS, INC.
Karen Thornton, Esq., for the General Counsel.
David C. Hagaman, Esq., Kevin M. Smith, Eas., and Brett P.
Ruzzo, Esq., for the Respondent.
Steven Marrs, International Representative, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge: This
consolidated case was heard before me on nine separate days
between March 10 and 27, 2003, in Miami, Florida. The com-
plaint as amended at the hearing was issued by the Regional
Director for Region 12 of the National Labor Relations Board
(the Board) based on charges brought by United Food & Com-
mercial Workers, International Union, AFL–CIO/CLC (the
Charging Party or the Union) and Tarvis Hooks, an individual,
and Joaquin Garcia, an individual, and Edgar Linarte, an indi-
vidual and alleges that Publix Super Markets, Inc. (the Respon-
dent or the Company) has engaged in and is engaging in viola-
tions of Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act). The Respondent has by its answer, as amended
at the hearing, denied the commission of any violations of the
Act.
On the entire record, including testimony of the witnesses
and the exhibits received in evidence and after review of the
PUBLIX SUPER MARKETS 1445
briefs filed by the General Counsel and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, Respondent admits and I find that at
all times material during the 12-month period preceding the
filing of the complaint, Respondent has been a Florida corpora-
tion, with an office and place of business located in Miami,
Florida, where it has been engaged in the operation of a ware-
house and distribution center for the distribution of groceries to
its retail stores, Respondent in conducting its business opera-
tions derived gross revenues in excess of $500,000 and pur-
chased and received at its facility, goods and materials valued
in excess of $50,000 directly from points located outside the
State of Florida and at all material times Respondent has been
an employer within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that at
all times material the International Union has been a labor or-
ganization within the meaning of Section 2(2), (6), and (7) of
the Act.
III. STATEMENT OF FACTS
A. Introduction and Background
The following is largely undisputed and is set out in the
General Counsel’s brief and is supported by the record in this
case:
These cases1 involve Respondent’s alleged violations of Sec-
tion 8(a)(1) and (3) of the Act. They occurred as part of Re-
spondent’s response to the organizing efforts of employees on
behalf of the United Food & Commercial Workers Union, Lo-
cal 1623, AFL–CIO, CLC (the Union). The 8(a)(1) conduct
extends from 1999 to 2002 and was alleged to have been com-
mitted by numerous supervisors and department heads and to
have taken place both in large meetings and in one-on-one con-
versations with employees. The 8(a)(1) allegations run the
gamut from threats of plant closure, loss of jobs and benefits to
denying employees a witness in a meeting that could have lead
to discipline under Epilepsy Foundation of Northeast Ohio, 331

1 The United Food and Commercial Workers International Union,
AFL–CIO, CLC and UFCW Local 1625, and individuals Tarvis Hooks,
Joaquin Garcia, and Edgar Linarte filed the charges in these cases, the
first being filed October 18, 1999, by the International and the last
amended charge being filed on September 18, 2002, also by the Inter-
national. Following the issuance of the consolidated complaint on
October 31, 2002, Respondent filed a timely answer denying the essen-
tial allegations in the consolidated complaint. Another Order consoli-
dating cases for hearing and notice of hearing to add the objections in
Case 12–RC–8716 was issued on December 12, 1992. The Region
issued an Order Severing Cases, Approving Withdrawal of Petitioner’s
Obections to Election and Certification of Results of Election on March
7, 2002. The trial in this matter was held on March 10–14, 24–27,
2003, in Miami, Florida. At trial, the complaint was amended on the
record to correct titles of supervisors and dates of certain 8(a)(1) allega-
tions in complaint. Respondent amended its answer accordingly.
NLRB 676 (2000). The 8(a)(3) allegations involve various
forms of discipline, including the suspension and discharge, of
well-known and longtime union adherent Luis Pacheco by Re-
spondent.
Respondent2 operates a full service dry grocery warehouse
and distribution center in Miami, Florida, for Publix Supermar-
kets. It is part of Publix Super Markets that operates a grocery
chain in Florida and other states that the Union has been at-
tempting to organize for many years.
The Miami warehouse is a 69-door facility and employs
about 400 employees, referred to as associates, overall in the
warehouse. There are two shifts in the warehouse department.
Respondent’s operations include a grocery department, a cafe-
teria, in-house maintenance, a garage, facility services, dis-
patch, and a recycle department.
Jack Mosko is the distribution manager at the Miami facility
and is responsible for the whole warehouse operation. Richard
Schuler held the position of distribution manager from 1995 to
mid-2000. Schuler is now vice president of distribution and his
office is in Respondent’s corporate office located in Lakeland,
Florida. Joe Cox, the warehouse superintendent of grocery,
reports directly to Mosko. Cox is in charge of the grocery de-
partment, the day and night shift, receiving, shipping, inven-
tory, the cafeteria, and sanitation.
Desmond Tice is the day-shift department head and he is in
charge of receiving, shipping, sanitation, and pest control. Joue
Cardona is the night-shift department head and Keith
Hankerson is the assistant department head on the night shift.
Tice and Cardona report directly to Cox.
The line supervisors reporting to Tice on the day shift for
shipping and receiving are Alvin Pratt, Keith Thomas, and
Wendell Braye. Pratt supervises the day-shift forklift operators
and warehousemen. Thomas supervises the day-shift selectors
and order checkers. Braye supervises the sanitation and pest
control and fills in for Thomas and Pratt when they are out.
The line supervisors on the night shift are Kathy McColgin,
John Pinho, Mike Collins, Caven Morgan, Joe Dineen, and
James Royer, and although no longer employed, at one time,
Luis Funes. The six first-line supervisors report to Keith
Hankerson, assistant department head and everybody on that
shift reports to Cardona. In addition, Cardona has the direct
responsibility for clerks and jockeys. Similarly, Hankerson has
direct responsibility for inventory. The line supervisors each
have responsibilities for teams consisting of forklift operators,
sanitation, and selectors.
Sanitation has 28 employees. Sanitation workers are respon-
sible for making sure that it is a safe environment for the selec-
tors and motor operators. Sanitation associates pick up dam-
aged merchandise, sweep out the aisles, and make sure that
there is no debris on the floor.
Repack is an extension of sanitation. Sanitation generally
repacks the cases of damaged merchandise that is found in the
warehouse and ships it out to the store or takes it back to Re-
spondent’s reclamation center. Repack is located in the south-
west corner of the warehouse. There are two designated em-

2 Respondent amended its answer at trial to change the name of Re-
spondent to Publix Supermarket, Inc. Miami Distribution Center, Inc.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1446
ployees who are generally assigned to work on repack, but
other sanitation employees also work it.
Mike Fitzpatrick is currently the dispatcher superintendent.
In June–August 1999, he was the night-shift department head in
charge of the shipping operation on the night shift. Joe Dineen,
a front line supervisor on the night shift, was a dispatcher on
the night shift between September 2001 and 2002.
Respondent offers a 401(k), a retirement plan, a profit-
sharing plan, a cafeteria where employees are provided a free
lunch, and provides employees with a Christmas or holiday
bonus, which can be as much as 2 weeks of full wages.
Respondent has an ongoing educational program training for
managers and supervisors referred to as “union-avoidance”
training. The training does not end following a union cam-
paign.
Since 1993, the Union was involved in discrimination law-
suits that resulted in large settlements involving Respondent.
The lawsuits received publicity and the Union used the public-
ity in its ongoing campaign to organize Respondent’s employ-
ees. The Union has been attempting to organize Respondent’s
production and maintenance employees at the warehouse since
late 1995, with an ongoing campaign of varying levels of inten-
sity. The Union’s International representative, Steven Marrs,
testified that former employee Mario Eaton began an in-house
group called the Publix Union Brigade to address problems
concerning workplace rules, wages, work schedules, and some
of the managers. Marrs himself is a former company employee
who resigned in and was later recruited by the Union to work as
an organizer and subsequently worked on the Union’s efforts to
organize the Company. The Publix Union Brigade drew up a
petition demanding changes in the workplace rules and faxed it
to Respondent.
In 1995, Eaton contacted Union Representative Marrs and
they met in 1996. In 1996, they began to build a small commit-
tee. Mario Eaton, Domingo McCoy, and Luis Pacheco were
the main employees involved. In 1996, the interest in organiz-
ing came from mostly Hispanic associates because Hispanic
employees perceived that African-Americans were getting bet-
ter jobs and more promotions than Hispanics because of a prior
race discrimination lawsuit. The committee handbilled the
Miami warehouse a few times, about every 2 weeks, did some
home calling, and were getting authorization cards signed.
Marrs and International Representative Bob Andrews worked
on the campaign.
Marrs testified that after a few weeks, Eaton had a change in
attitude and became hard to contact. In May 1998, Respondent
discharged Eaton. The Union filed an unfair labor practice
charge on his behalf. The Region issued a complaint and the
hearing opened on September 8, 1998. Prior to the close of the
trial, the parties reached a settlement. The settlement renewed
interest from Miami employees in trying to organize. Luis
Pacheco and Domingo McCoy contacted Marrs asking him to
meet with them and talk to them about starting another organiz-
ing campaign at Publix Supermarkets, Miami Distribution Cen-
ter. Marrs began to build a campaign. The group of employees
interested in organizing expanded from McCoy and Pacheco to
include Tarvis Hooks, Miguel Marin, Felix Berrios, Nay Ke-
agler, and Joaquin Garcia. They began handbilling, home call-
ing, and talking to employees.
The Union filed its first petition, on July 21, 1999. A hear-
ing on the petition was conducted on August 4, 1999. The
Union sent a letter dated August 8, 1999, to Richard Schuler
identifying committee members. Pacheco hand delivered the
letter to Richard Schuler. The letter identified Pancheco,
McCoy, Berrios, Hooks, Keagler, Marin, and Garcia as mem-
bers of the Union’s organizing committee. The union cam-
paign consisted of home calling, weekly union meetings, and
handbilling. The Union translated some of the handbills in
Spanish. Antiunion employees were also handbilling against
the Union, but on different days of the week.
The election in Case 12–RC–8379 was set for September 30
and October 1, 1999. However, the Union withdrew its peti-
tion. Marrs testified that the committee found employees
harder and harder to contact in home calling. Committee mem-
bers were telling the union representative that the employees
were scared and there had been threats made about the ware-
house closing if the Union came in. Marrs testified that he also
heard from employees that the Respondent’s supervisors were
telling them not only would the warehouse be closed, but also
that the workers were going to lose their jobs, and that the
Company would not negotiate with the Union. Marrs heard
from the employees that the supervisors made these statements
in meetings and one-on-one conversations.
After 3 months, Pacheco and McCoy called Marrs again.
They felt that the promises that Respondent made to employees
during the campaign had not been kept. Respondent was sup-
posed to take a look at the wages, the so-called productivity
average that they had maintained, and the attendance policy.
When it did not happen, they called the Union to try again.
They told Marrs the Respondent was starting to change all the
rules again.
Marrs and his group of employee organizers started building
a committee again. They began getting cards signed and home
calling card signers. They tried to keep it underground as long
as possible. Pacheco home called 3 days per week, Hooks
home called about 5 days per week. Miguel Marin, Jefferson
Jules, Joaquin Garcia, and McCoy, home called sporadically.
There were other union representatives helping Marrs going on
home calls. They also handbilled to inform employees that
they had a right to a witness when they had to talk to their su-
pervisor about a matter that could lead to discipline.
Marrs filed some EEOC charges for some for the Hispanic
employees and a religious discrimination charge for Jefferson
Jules. The Right to Sue Letters relating to the EEOC charges
were issued in about July and August 2000. A class action race
discrimination lawsuit was filed against Respondent by em-
ployees on October 23, 2000. The named plaintiffs in that case
were Garcia, Berrios, Pacheco, McCoy, Marin, and Lazarus
Heredia.
During 2001, including March–April, the campaign contin-
ued to consist of home calling, conducting union meetings,
handbilling, and talking to workers about the Union. Pacheco,
Hooks, Garcia, Marin, McCoy, and Jules continued to be active
in the organizing efforts. On October 12, 2001, the Union filed
another petition, Case 12–RC–8616, to represent Respondent’s
PUBLIX SUPER MARKETS 1447
employees at this location. The DD&E issued dated December
7, 2001. After the petition was filed, the Union continued to
home call, hold union meetings and continued to get names of
employees from the committee. They met with employees at
their homes, a hotel, or neutral places. On January 3 and 4,
2002, an election was held and the employees decided against
union representation. The Union filed objections to the election
which were withdrawn prior to the hearing.
B. The 8(a)(1) Allegations
1. Paragraph 5(a) of the consolidated complaint alleges
that in late June, July, and early August, Supervisors Joe
Cox and Mike Fitzpatrick disparately applied Respondent’s
no-solicitation/no-distribution rule
The General Counsel concedes that the rule is not unlawful
but contends that it was discriminatorily applied to the posting
of union materials.
The rule is as follows:
SOLICITATION BY ASSOCIATES
Publix respects the right of all associates to our indi-
vidual beliefs, opinions, memberships and associations.
We respect and encourage the sharing of ideas and opin-
ions among fellow associates. As long as we abide by the
Rules of Unacceptable conduct (see especially No. 18, ne-
glect of work responsibilities) we may share opinions,
seek support for organizations which we support or in
which we are members, discuss social or job-related is-
sues, and engage in similar activities with fellow associ-
ates at any time.
We must insist, however, that any such communica-
tions not disturb or interfere with the shopping experience
of our customers in any way. (For example, we should
never carry on a personal conversation with another asso-
ciate in the presence of a customer in the store.)
We must also prohibit any solicitations for commercial
purposes (e.g. sale of magazines, life insurance, or mer-
chandise) on company premises.
Finally, we must prohibit the distribution of literature
at any time for any purpose in working areas of the facility
It is undisputed that Respondent permitted employees to post
material for the sale of automobiles, boats, and other items.
Bulletin boards are located in the garage, cafeteria, mainte-
nance locker room, front docks, by the shipping and receiving
offices, and in the dispatch office. Material was also posted on
the glass window of the shipping office.
Alleged discriminatee Luis Pacheco testified that he checked
the bulletin board by the timeclocks daily and saw items for
sale of homes, cars, and rims posted on the bulletin board. He
observed that in 1999 prounion material was posted but would
disappear. On one occasion, Pachecho posted union material
next to antiunion literature. On one occasion in August 1999,
Pachecho saw Warehouse Superintendent Joe Cox tear union
material down from the glass window of the shipping office.
Pachecho testified also that he observed other employees post
antiunion material on the bulletin board but that only the union
material was removed.
Former employee Domingo McCoy testified that in July to
August 1999, he observed employees posting notices of items
for sale on the bulletin boards. Current employee Joaquin Gar-
cia testified that he observed then Night-Shift Department Head
Mike Fitzpatrick remove old antiunion literature and put up
new antiunion literature. He observed that the union materials
would disappear from the bulletin boards. Richard Schuler the
former distribution manager for the Miami warehouse from
1995 to mid-2000, admitted that he told supervisors to remove
union literature from the bulletin boards and that the supervi-
sors complied with these orders. Current Dispatcher Superin-
tendent Fitzpatrick testified that he removed union material
from the bulletin board outside the selector’s office that is used
for production information and not for communications. The
General Counsel contends that the evidence establishes that
Respondent allowed other nonwork-related solicitation that did
not involve the Union to be posted on company bulletin boards.
However, the supervisors openly removed union material from
bulletin boards, thus, conveying the message that the union
postings would not be allowed. She notes that the no-
solicitation/no-distribution rule does not say that only com-
pany-oriented information is permitted on the bulletin boards.
She contends that the refusal to permit the posting of prounion
material by Respondent was violative of Section 8(a)(1) of the
Act citing Heartland of Lansing Nursing Home, 307 NLRB
152, 160 (1992).
Respondent contends that consistent with the solicitation pol-
icy, it removed both union and antiunion material from the
bulletin boards. It contends that it is significant that not one of
the three witnesses (Garcia, McCoy, and Pachecho) testified
that any of the antiunion materials placed on the bulletin board
were placed there by any of the antiunion employees. He notes
that the only testimony shows that it was management and not
employees who placed the antiunion materials on the bulletin
boards. Respondent concludes that the General Counsel did
not, therefore, prove a factual case of disparate treatment. Re-
spondent contends that the legal question presented is whether
an employer can post antiunion literature through its managers
on a company-owned bulletin board while excluding employees
from placing prounion literature on the same company-owned
bulletin board, citing Hale Nani Rehabilitation, 326 NLRB 335,
336 (1998), where the Board held that an employer’s valid rule
against employee distribution is not rendered unlawful because
the employer chooses to use its own premises to engage in its
own distribution.
I find that Respondent violated Section 8(a)(1) of the Act by
its disparate enforcement of the no-distribution rule against
prounion postings while permitting postings for the sale of
various items such as automobiles, dinner tickets, and the like.
Heartland of Lansing Nursing Home, supra; Holly Farms
Corp., 311 NLRB 273, 274 (1993); Bon Marche, 308 NLRB
184, 185 (1992). The Hale Nani Rehabilitation case, supra
cited by Respondent dealt with a different issue which was the
alleged disparate treatment by the employer which posted its
own antiunion literature while not permitting the posting of
prounion literature. I accordingly do not find it dispositive of
the issue in the instant case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1448
2. Paragraph 5(b) of the consolidated complaint alleges
that on/or about late July or early August 1999, Respondent
by its Supervisor Alvin Pratt at Respondent’s facility
threatened employees with plant closure if they selected
the Union as their bargaining representative
Domingo McCoy, a former forklift operator on the night
shift testified he heard Pratt talking to about seven or eight
employees sometime after the petition was filed in 1999.
McCoy testified he (McCoy) had been giving out union au-
thorization cards to some new employees. McCoy placed the
conversation at between 12:30 and 1 p.m. prior to the start of
the night shift. He testified that employees Garcia, Bessios, and
Perry were some of the employees in the group. McCoy testi-
fied that Pratt said that the group should:
be careful how we voted and to make the right decisions be-
cause they would start shipping work out of the warehouse to
nearby warehouses until we didn’t have enough work to . . .
justify our plant to be open. That we wouldn’t have enough
work to be open because they would start shipping out our
work out of the warehouse.
Current employee Garcia testified that in late July or early
August 1999, he heard Pratt talking to a group of selectors and
motor operators and tell them, “if your union came in, probably
we close the warehouse.”
Pratt was not called to testify and his absence was unex-
plained. Accordingly the testimony of McCoy and Garcia on
this matter stands unrebutted on the record. Respondent de-
fends against this allegation by attacking the credibility of
McCoy’s and Garcia’s testimony and citing purported inconsis-
tencies in the testimony of these two witnesses. He notes that
on cross-examination, McCoy testified that he remembered
employees asking Pratt questions during this conversation but
could not recall the subject matter of those questions. He also
notes that at the hearing McCoy named “several” (three) of the
employees present at the conversation but in his May 19, 2000
affidavit, McCoy stated he could not remember who was pre-
sent. Respondent contends that Garcia’s testimony is likewise
incredible as Garcia testified he saw Pratt talking to a group of
employees including McCoy and heard Pratt threatening to
close the facility as he approached and that no one asked a
question and the employees all left. Respondent notes also that
Garcia testified that supervisors did not want to talk about the
Union in front of him and McCoy on that date. Respondent
also contends that it is highly unlikely that Pratt, after receiving
training from highly qualified trainers by Labor Relations Man-
ager Mark Codd and Labor Relations Specialist Curtis Palmore,
would have told associates that the Company would close the
facility if the union is elected.
I find based on the unrebutted testimony of McCoy and Gar-
cia, a current employee, that Supervisor Pratt did tell the em-
ployees that the warehouse would be closed or the work would
be removed if the Union were selected by the employees as
their collective-bargaining representative. Although I note
some inconsistencies in the testimony of these employees, I
credit their testimony that Pratt was threatening plant closure
and/or the removal of work as a consequence if the Union were
selected. I do not find that their testimony is rebutted or dimin-
ished in the weight to be accorded it as a consequence of any
training in labor relations that may have been administered. I
find rather that it is more likely that Pratt was passing on this
threat to employees which he had in some fashion been ap-
prised of by management.
I find that Respondent violated Section 8(a)(1) of the Act by
the threat of plant closure made to employees by Pratt. Springs
Industries, 332 NLRB 40 (2000); Dlubak Corp., 307 NLRB
1138, 1143, 1152 (1992); Electrical South, Inc., 327 NLRB 270
(1998).
3. Paragraph 5(c) of the consolidated complaint alleges
that in/or about late July and in/or about September or
October 1999, Respondent by Desmond Tice, Respondent’s
day-shift department head threatened to deny employees em-
ployment opportunities if they selected the Union as their
bargaining representative
This allegation involves alleged threats by Tice to employees
that if the Union were selected, the employees would no longer
be permitted to become truckdrivers as the petitioned for unit
does not include truckdrivers. Entry-level positions in the
warehouse are sanitation employees and selectors. Selectors
then move into forklift positions. Employees also usually move
from night shift to day shift. Truckdriver positions are consid-
ered very desirable by employees. Respondent posts signup
lists for truckdriver positions in the first 2 weeks of January and
July. A significant number of selectors and forklift drivers (15–
20) signup each time. The driver positions are awarded by
seniority.
Employee Luis Pachecho testified that in August 1999, he
heard Tice telling employees in the cafeteria during a break
that:
If the Union were to come in, that they would not be
able to go to the driver positions and that if the Union
were to come in, that seniority would not exist anymore.
He was talking about the drivers not being able to vote in
the election and that because the drivers were not part of
the bargaining unit, that employees would not be able to
go into those positions afterwards if the Union were to
come in. Tice said seniority would go right out the win-
dow.
Garcia testified he heard Tice talking with Wendell Braye,
McCoy, Steven Williams, and three selectors while they were
standing around the HD line around the dog food section. Gar-
cia testified the heard Tice say,
. . . do you want to work in the warehouse the whole of your
life? So the only way to get off of that warehouse is to be-
come a truck driver. And if your guys go union, you guys not
going to get the truck because truck drivers are not going to be
in the Union.
Tice testified that he did not recall this discussion in the cafe-
teria but he did remember telling employees that truckdrivers
would not be in the bargaining unit, after the decision regarding
who would be in the unit. The General Counsel contends that
Pacheco and Garcia were credible witnesses and that their tes-
timony withstood lengthy cross-examination and should be
PUBLIX SUPER MARKETS 1449
credited over Tice’s testimony that he did not recall that any
employees asked him questions.
Respondent notes that the General Counsel offered the testi-
mony of Garcia, McCoy, and Paecheo in support of this allega-
tion. Respondent notes that there appears to have been two
separate conversations involving this allegation. In the first
alleged conversation Garcia and McCoy were involved. Garcia
testified that in July or August 1999, Tice who was with
Wendell Braye, told him McCoy, Steven Williams, and three
selectors, that the only way to get out of the warehouse was to
be a driver and that if there were a union, employees would not
become drivers as drivers are not in the bargaining unit.
McCoy, however, testified that Tice said that the Company
would hire other trucking companies to supplement the current
trucks to keep the associates in the warehouse. Respondent
contends that not only do Garcia’s and McCoy’s testimony on
the same alleged conversation differ but McCoy did not testify
that Tice made any threat related to the Union as he did not say
Respondent would outsource the drivers’ duties if the Union
was elected.
Respondent notes that the second conversation allegedly oc-
curred between Tice and unidentified associates in the cafeteria.
Pacheco testified that he overheard Tice tell associates in the
cafeteria that if the Union came in there would be no more
seniority in reference to the driver positions. Respondent con-
tends that the testimony of Garcia, McCoy, and Pacheco was
either not credible or wholly insufficient to support a violation,
and that conversely, Tice’s testimony was clear, credible, and
consistent as he denied each one of the alleged conversations.
Respondent contends that the only conversation that could have
related to these allegations is that Tice told the employees that
drivers were not in the bargaining unit. Respondent also con-
tends that in training Tice had received, he was instructed not to
threaten employees.
I find that Tice did threaten the employees as set out above
that they would lose the opportunity to become truckdrivers if
the employees selected the Union as their collective-bargaining
representative. It does appear as noted by Respondent that
there were two separate conversations involved here, one in-
volving both Garcia and McCoy and the second overheard by
Pacheco. Contrary to the Respondent’s contentions I find that
the testimony of McCoy and Garcia was credible although I
note that McCoy testified that Tice had told the employees that
the Respondent would hire another trucking company to make
the deliveries as the unit employees would no longer have an
opportunity to become truckdrivers. I credit McCoy in this
regard although Garcia did not testify to this statement. I do
not agree with Respondent’s contention that McCoy did not
attribute the outsourcing of the drivers’ duties to the Union’s
election. Rather I find that this was implicit in McCoy’s testi-
mony. I also credit Pacheco’s testimony as set out above. I
note that Tice did not clearly deny that these conversations
occurred but rather testified he did not recall them. I also note
that Respondent did not call Supervisor Wendell Braye or Ste-
ven Williams to testify concerning the conversation who would
have been favorably disposed to Respondent’s position to cor-
roborate Tice’s version of the conversation. While I note that
truckdrivers were not to be included in the bargaining unit, this
did not automatically or inevitably preclude employees who
were in the bargaining unit from being given an opportunity to
become truckdrivers. I conclude that Tice did threaten employ-
ees in two separate conversations as set out above that if the
Union were selected, they would lose the opportunity to be-
come truckdrivers. Respondent violated Section 8(a)(1) of the
Act by the issuance of these threats by Tice. Prediction of ef-
fects of unionization must be based on objective fact and were
clearly not based on objective facts in this case NLRB v. Gissel
Packing Co., 395 U.S. 575, 618 (1969); Debber Electric, 313
NLRB 1094, 1097 (1994).
4. Paragraph 5(d) of the consolidated complaint, as
amended at trial, alleges that on/or about October 27, 2000,
Respondent by Jack Mosko, threatened to discharge
employees because they engaged in concerted protected
activities by trying to assist fellow employees to address
work-related issues with Respondent
Current employee Joaquin Garcia and former employee Tar-
vis Hooks testified concerning this allegation. Jefferson Jules
was an employee who was a Seventh Day Adventist and was
having problems with getting 40 hours of work per week be-
cause he came in late on Saturday and Sunday. He discussed
his problem with Garcia and Hooks. On October 27, 2000,
before they punched in for work Jules discussed his problem
with Hooks who advised him to talk to Distribution Manager
Jack Mosko but to take a witness because management could
twist his words and that dishonesty automatically terminates
employees. Jules said he wanted to take Garcia and Hooks
with him. Jules wanted to be able to work another day to re-
solve his problem. Jules, Hooks, and Garcia decided to wait
until after the warmup meeting conducted by Supervisor Jose
Diaz. Warmups consist of 2 to 5 minutes of stretching and
exercise at the start of the shift in preparation for the work
which involved physical exertion. During the warmup periods
the supervisor discusses with the employees anything necessary
to apprise them of concerning the shift or upcoming problems
or information to be passed on to the employees. During the
warmup meeting Supervisor Jose Diaz announced a new proce-
dure for working overtime. It provided that employees who
wanted to work overtime must request it a day in advance and
would only be permitted to work 1 day of overtime per week.
After the warmup Hooks asked Diaz if Jules, Garcia, and he
could go see Mosko. Garcia saw Hooks and Jules talking to
Diaz. He joined them and said he would go with them. Diaz
said go ahead. When they arrived at Mosko’s office they asked
to see Mosko. Warehouse Superintendent Joe Cox was also
there. They sat down and Mosko asked Jules to go first. Jules
said he had a complaint and began to talk about his problem.
Mosko interrupted and asked Hooks and Garcia why they were
there. Garcia said, “I came here because Jefferson Jules and
Tarvis Hooks told me that we need to see you about . . . Jeffer-
son’s problems.” Hooks said he was there as Jules’ witness.
Mosko said he did not need them and sent them back to work
while Jules remained to discuss his problem alone.
About 30 minutes later, Hooks and Garcia were called back
into Moskos’ office. Mosko, Cox, and Diaz were present.
Mosko asked why they had come to his office with Jules. Gar-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1450
cia said he came to discuss Jules’ problem. Hooks said he
came to be a witness. Mosko said they had told Diaz they were
going to talk about overtime and that this was a very serious
problem because they had been dishonest and that normally
Respondent terminated employees for dishonesty. Garcia testi-
fied that Mosko said you could be fired or given a management
statement which is a note to file of some type of unacceptable
conduct. Hook testified that normally we terminate you for
dishonesty but in this case your supervisor will get with you
and give you some counseling statements. Garcia and Hooks
attempted to explain that they had not given Diaz a reason for
their request to talk to Mosko and that Diaz had assumed the
request was made to discuss the new overtime policy which he
had been advising the employees of at the warmup meeting.
Diaz contended that Hooks had asked about overtime and that
James Roger another supervisor was there. Garcia and Hooks
contended that Roger was not there. Mosko told them to return
to work and that their supervisor, Michael Collins, would get
with them later about the decision on the manager’s statement.
The General Counsel contends that Mosko’s version was
consistent with Hooks and Garcia up to a point. Mosko testi-
fied he said, “Well guys, with the facts I have, the only conclu-
sion I can make is that you guys are playing a game and you are
being dishonest . . . there’s been a few people in the past, based
upon the severity of the breaking of the rule that have been
terminated . . . but to memorialize what just occur here, I said
Jose, who’s their immediate supervisor, will issue them a level
of counseling . . . .” However, Mosko also testified that at the
end of the meeting there would be no counseling because there
had been a misunderstanding. Jace Diaz was not called as a
witness and Cox did not testify about the meeting. Garcia testi-
fied that about an hour after this meeting, Cox came to him and
told him that he believed Garcia was telling the truth and had
told Mosko this. Hooks testified that Cox never apologized.
Respondent relies on the testimony of Mosko that he ques-
tioned Hooks and Garcia as to why they were in his office to
discuss Jules’ problem and that they contended they wanted to
be witnesses and that he then told them to go back to work as
this was not an investigatory interview. After discussing Jules’
problem, Mosko then questioned Diaze who said that Garcia
and Hooks told him they wanted to see Mosko about the over-
time policy he had just discussed with the employees. Mosko
testified he then called Garcia and Hooks back to his office
because he thought they had lied to Diaz about the reason they
had asked to speak to Diaz. When he told them Diaz had told
him they had asked to see him about the new overtime policy,
Garcia and Hooks did not respond. He then believed that
Hooks and Garcia had lied to Diaz as by their own admission
they wanted to act as witnesses for Jules. He then informed
them they “could” receive counseling for dishonesty. Only at
that point did Garcia and Hooks tell him they had given Diaz a
reason for their request to see Mosko. When Mosko questioned
Diaz, he admitted it was possible that he had assumed that Gar-
cia and Hooks had wanted to see Mosko about the overtime
policy. Mosko testified he told Garcia and Hooks there was a
misunderstanding and that there would not be any discipline
and neither of them did receive any discipline.
I find that Respondent violated Section 8(a)(1) of the Act by
the threat of discipline issued to Garcia and Hooks by Mosko.
To the extent that the versions of this incident differ I credit
that of Garcia and Hooks. I note that neither Diaz who did not
testify nor Cox who testified were questioned about what oc-
curred at these meetings. Clearly Garcia and Hooks were en-
gaged in protected concerted activities when they attempted to
accompany Jules to discuss his work schedule problem. When
Masko ascertained that the problem was one of Jules’ work
schedule and since this was not an investigatory review, he sent
Garcia and Jules back to work in accord with Epilepsy Founda-
tion, supra. However, the record is clear even under his version
that Mosko did threaten Garcia and Hooks with discipline in-
cluding discharge while they were attempting to help their fel-
low employee, Jules. It appears that Masko was so concerned
about their engagement in protected concerted activities that he
rushed to judgment in this case and responded with a threat of
discharge which was clearly an overreaction to their mere re-
quest to meet with him.
5. Paragraph 5(b) of the consolidated complaint alleges
that on/or about March 15, 2001, Mosko threatened
employees with discharge because they engaged in union
activities and harassed employees by requesting that
employees report to Respondent, the union activities
of other employees
This allegation invokes an alleged threat of discharge by
Mosko to Luis Pacheco for home calling and alleged harass-
ment of employees by Mosko by his request that employees
report to Respondent the union activities of other employees.
In late 2000 and early 2001, employees were actively cam-
paigning in support of the Union for the upcoming election
scheduled for January 3 and 4 2001. They passed out union
fliers, obtained signed authorization cards, wore union T-shirts
that said, “Vote yes for the Union” and began home calling on
their fellow employees on behalf of the Union in February
2001. Hooks testified that Respondent posted two memos to
employees in the warehouse in opposition to the home calling.
The first memo to employees stated that the prounion employ-
ees were harassing employees at their homes. It was only up
for a day or two and was removed before Hooks was able to
copy it. The second memo, dated February 2, 2001, specifi-
cally mentioned Steve Marrs and Hooks and stated that they
were harassing employees. Pacheco testified that during this
period he made the home calls almost every day he worked and
made about 25 home calls each week.
Pacheco was called to Joe Cox’s office in March 2001. Cox
said Mosko wanted to see him. When he arrived at Mosko’s
office Cox walked in with employee Henry Ferguson and mo-
tioned for him to speak. Ferguson told Pacheco he did not want
him to bring the union people to his house anymore. Pacheco
told Ferguson they had discussed this on the floor and asked
why Ferguson was bringing it up in front of management. Fer-
guson continued and became agitated and threatened Pacheco
that he would turn the dogs on Steve Marrs and Pacheco if they
came by his house again. Mosko stated that they were all
adults and could settle this in a civilized manner. Pacheco told
PUBLIX SUPER MARKETS 1451
Ferguson that if he had told him this on the prior visit, they
would not have come by his house a second time.
Mosko then pulled out a folder and told Pacheco if anyone
does anything to misrepresent Publix outside the workplace,
those are ground for termination. He then told Pacheco a story
that he had fired two employees for something they did outside
of work. He then read a statement from the Company’s rules
that if anyone “harasses someone, those are grounds for termi-
nation.” Pacheco testified that Mosko told him “that it applies
to the Union as well and I’m sure you’re aware of this Luis,
that it applies to you guys as well.” Pacheco testified that
Mosko did not make a similar comment to Feerguson. Pacheco
testified that Mosko also said if anybody harasses others or
there are any problems either sides should come to him. In
reference to a question by Ferguson as to how long the Union
could campaign, Mosko told him there was no time limit. He
also said that the Union was attempting to chop Publix off at
the knees and that all of the lawsuits against the Company were
caused by the Union trying to harm the Company. Mosko also
said that anyone who supported something like that should be
ashamed of himself. Pacheco testified he asked what they
should be ashamed of, protecting the little people against the
Company. Cox then said that Publix had settled the women’s
lawsuit and Pacheco replied the Company settled it because
they knew they were wrong.
Respondent contends that Mosko never actually threatened
Pacheco with termination for his union activities but that
Mosko merely reminded Pacheco that all associates, including
Pacheco, are subject to Publix’s rules of unacceptable conduct
regarding conduct outside the workplace regarding Ferguson’s
complaint that Pacheco was harassing him. Respondent also
contends that Mosko did not tell employees to report the union
activities of other employees. Mosko denied telling Ferguson or
Pacheco that if they misrepresented Publix outside the work-
place they would be terminated and denied threatening Pacheco
with discipline for the incident with Ferguson and denied sin-
gling Pacheco out when Mosko referred to company rules.
Respondent therefore contends that the General Counsel has
not established the threat of discharge and harassment to sub-
stantiate this allegation.
I find that Mosko’s remarks at this meeting were violative of
Section 8(a)(1) of the Act as they constituted a threat of dis-
charge against Pacheco for his engagement in protected con-
certed activities in making home calls on behalf of the Union.
Although the remarks were couched in generalized language, it
is clear that Mosko’s remarks were directed at Pacheco in a
veiled threat of discharge for engaging in the home calling.
There was no evidence that Pacheco had actually harassed Fer-
guson despite Ferguson’s conclusion which was not based on
any substantive fact in this record. Moreover, the threats of
discharge by Mosko were interspersed with Mosko’s disparag-
ing remarks against the Union and its supporters leading to the
inevitable conclusion that the threats were being issued to
Pacheco and other employees who engaged in like activity in
support of the Union. I also find that Mosko’s request that the
employees come to him if they are harassed which was directed
to Pacheco and Ferguson was violative of Section 8(a)(1) of the
Act as there is no evidence in this record that any employees
were being harassed and thus constituted a request by Mosko
that employees report the union activities of other employees to
him. Bloomington-Normal Seating Co., 339 NLRB 191 (2003).
6. Paragraph 5(g) of the complaint alleges that in or
about mid-October 2001, on a date not more specifically
known Respondent, by Luis Funes, at Respondent’s
facility, threatened the employees with discharge and
unspecified reprisals in retaliation for their concertedly
filing a lawsuit against Respondent concerning their terms
and conditions of employment
At the time of the hearing, Edgar Linarte was employed as a
motor operator on the day shift and had been employed by Re-
spondent for 9 years. He was one of a group of employees who
went to the Equal Employment Opportunity Commission
(EEOC) about the warehouse operation. The group included
Luis Pacheco, Joaquin Garcia, Luis Marin, and Eddie Herrera.
They later hired an attorney who filed a class action lawsuit on
October 23, 2002, with the following employees chosen by the
attorney as named plaintiffs: Joaquin Garcia, Felix Berrio, Luis
Pacheco, Domingo McCoy, Miguel Marin, and Lazarous Here-
dia and on behalf of all others similarly situated.
The managers and supervisors were aware of the lawsuit. On
an occasion, when he was working by himself Linarte was ap-
proached by Supervisor Luis Funes who told him to stop so
they could talk. No one else was in the area and they spoke in
Spanish. Funes told him the supervisors knew he had filed a
complaint against the Company and were going to talk to him.
Funes asked why he was involved and Linarte told him because
of the discrimination against Hispanics. Funes told him the
“demand” was not against the Company, but the supervisors.
Funes told him the supervisors were going to talk to him and
warned that if the workers did not win the lawsuit, “the Com-
pany could dismiss them for being dishonest.” Linarte told his
coworkers at breaktime what Funes had said. Later that day as
he was clocking out, Funes approached him and told him he
had told Linarte this as a friend and not to tell anyone else. A
couple of months later Joe Cox called him and told him to call
the Publix attorneys as they needed to talk to him urgently
about labor-related problems. Linarte testified he did not call
because he was humiliated.
I credit the unrebutted testimony of Linarte as Funes was not
called to testify and find that the warning issued by Funes con-
stituted an unlawful threat of discharge against Linarte in viola-
tion of Section 8(a)(1) of the Act. It is clear that Linarte’s par-
ticipation in the filing of the lawsuit was protected concerted
activity arising out of the employment relationship, was a mat-
ter of common concern of his fellow employees similarly situ-
ated and involved national labor policy. Country Club of Little
Rock, 260 NLRB 1112, 113–114 (1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1452
7. Paragraph 5(i) of the complaint alleges that since on/or
about mid-November 2001, including November 29, 2001,
and on other dates not presently known, Respondent by
various security guards, whose names are unknown,
prohibited employees from parking in Respondent’s
parking areas in order to discourage them from distributing
prounion handbills
Parking rules are covered under Respondent’s rules of unac-
ceptable conduct rule 25 states that failure to comply with rules
established by individual stores or departments is unacceptable
conduct. Parking rules are listed as an example. This allegation
involves the alleged interference by Respondent’s guards with
parking by prounion employees near the main gate on Respon-
dent’s property while they are handbilling. There are 21 secu-
rity guards. Richard Thomas is the facility security supervisor.
Abbeo Bermundez and Katrina Cumer are also security guard
supervisors. Thomas reports to Derrick Jackson, loss prevention
specialist. The security department reports to Keith Hunter who
is the head of loss prevention and oversees all security in the
Miami facility and who has an office in the Miami complex.
Hunter reports to John Lee of the corporate office in Lakeland,
Florida.
There are several gates at the complex. This allegation in-
volves the main gate where there is a security post with a guard
shack. There is a parking area west of the guard shack and the
main parking area is to the east of the parking lot. The employ-
ees handbilled between the outside part of the gate and the
street.
Prior to the filing of the petition in 2001, employee handbill-
ers including Marin, Garcia, and Hooks parked within the gates
in the employee parking lot about 30 yards from the guard
shack and then walked back to the area where they handbilled
on behalf of the Union. Employees who handbilled against the
Union also parked there. The union handbillers generally met
there from 12 to 12:30 p.m. to handbill.
Garcia testified that the area where they parked was the guest
area. On about November 29, 2002, Garcia passed through the
main gate and parked in the guest area and got out of his vehi-
cle to handbill. The security guard asked him if he was going to
work. Garcia testified that he told the guard he was going to
handbill and that the guard told him he could not park there and
must go outside. Garcia testified the guard was a black man but
that he could not identify him. Garcia then moved his car across
the street to a gas station and never again attempted to park on
Respondent’s property when he was handbilling. Garcia also
saw Hooks try to park in the lot and be turned away by the
guard. Garcia also testified that after this incident he observed
employees Renzo Paridi, Jean Raphael, Bruce Jenkins, and
Melvin Henderson, handbilling against the Union and that they
parked in the same area where he had not been allowed to park
on November 29. Marin and Hooks testified they were not
permitted to park in this area on November 29, 2001, to hand-
bill. Marin parked by the gas station across the street from the
Publix warehouse. Hooks did the same. Hooks testified that
after November 29, he saw antiunion employees Renzo Parodi,
Roy Joseph, and Bruce Jenkins park in the area by the guard
shack. Pacheco testified that in November he saw antiunion
employees Ray Joseph and Kenneth Munning park in the visi-
tors area by the guard shack. He also observed that Garcia,
Hooks, and Marin parked across the street while handbilling.
Similarly, Union Representative Steve Marrs testified that he
observed antiunion employees park inside the gate near the
guard shack while prounion employees were parking across the
street. Security guard Claude Eligon testified he was on duty at
the main gate on November 29, 2001, but that he did not notice
where anyone parked.
The General Counsel contends that its witnesses should be
credited over Respondent’s. She notes that Garcia and Marin
are current employees and contends that all of the General
Counsel’s witnesses were consistent in their testimony that
Respondent’s guards had forced the prounion employees to
park across the street which put them at a disadvantage in re-
porting to work after handbilling and that these actions by Re-
spondent’s guards are attributable to Respondent and were
violations of Section 8(a)(1) of the Act.
Respondent notes certain discrepancies in the testimony of
employee witnesses Garcia, Marin, Pacheco, and Hooks and
contends that they were not credible and that the testimony of
Union Representative Marrs was not credible and notes that the
employees did not complain to supervisors concerning restric-
tions imposed on them with respect to parking their vehicles
near the guard shack in order for them to handbill on behalf of
the Union. Respondent contends that the testimony of guard
supervisor Richard Thomas and security guard Eligon was
credible and that this allegation should be dismissed.
I find that Respondent violated Section 8(a)(1) of the Act by
its prohibition of prounion employees Garcia, Marin, and
Hooks from parking on the Publix warehouse parking lot to
handbill on behalf of the Union. Although as noted by Respon-
dent there were discrepancies in their testimony, I find that the
overall substance of their testimony supports the conclusion
that Respondent through its security guards prohibited the pro-
union handbillers from parking on its property for purposes of
handbilling while permitting antiunion supporters among its
employees to park on its parking lot thus placing the prounion
employees at a disadvantage by requiring them to park across
the street. I found the testimony of Marin and Garcia both, cur-
rent employees and Hooks and Pacheco and Union Representa-
tive Marrs were mutually corroborative and credible. I credit
them over the testimony of Thomas and Eligon. I find that the
security guards were Respondent’s agents under Section 2(13)
of the Act and that their conduct in prohibiting prounion em-
ployees from parking on the parking lot while handbilling on
behalf of the Union was chargeable to Respondent and violative
of Section 8(a)(1) of the Act as it unlawfully interfered with
and restrained them from their Section 7 right to engage in
protected concerted activities. Solutia, Inc., 339 NLRB 60
(2003).
8. Paragraphs 5(f) and (r) alleged threat of discharge
issued by Supervisor Luis Funes on/or about February 7,
March 12, and May 29, 2002
Miguel Marin, a current employee at the time of the hearing
testified that in January or February 2002, “right after the elec-
tion” (held on January 3 and 4, 2002) Supervisor Luis Funes
PUBLIX SUPER MARKETS 1453
said to him, “Miguel, now you’re only going to have forty-three
people left because they’re going to be fire two other people
from your Union.” When Marin asked Funes how he knew this,
Funes started laughing and “said he knew” Marin placed this as
after the election in either January or February (2002). Shortly
thereafter, two union supporters, employees Marcus Bailey and
Perry (Blocker) Nimrod, were discharged on February 7, 2002.
Marin also testified that shortly before employee Tarvis
Hooks was discharged in March 2002, Supervisor Luis Funes
told him, “[T]hey were going to fire a big guy from the Union.”
A few days later, Publix fired Hooks. Marin placed this conver-
sation three or four months after the election. He testified fur-
ther that shortly thereafter Pacheco was fired. Pacheco was
discharged on March 15, 2002. Hooks was reinstated in Octo-
ber 2002, following the settlement of an unfair labor practice
charge he had filed regarding his discharge and was subse-
quently discharged again in December 2002. He had filed an
unfair labor practice charge with the Board regarding his sec-
ond termination which was pending at the time of the hearing in
this case. Marin testified that following Pacheco’s discharge in
March 2002, Funes was out of the warehouse for 3 months
working on United Way. On his return to the warehouse he saw
Marin in the grocery office and speaking in Spanish said, “Mi-
guel, what you doing here? You’re still here?” Marin answered
him in English and said, “Don’t you see me? I still working
here.” So that others in the room could be aware of his reply.
I credit Marin’s testimony which is unrebutted as Funes was
not called to testify. I find that the various comments by Funes
to Marin regarding employees Nimrod, Bailey, Pacheco,
Hooks, and Marin were threats of discharge for their engage-
ment in union activities and that Respondent thereby violated
Section 8(a)(1) of the Act. I further find that Funes’ statement
to their being only forty-three people left was in reference to
the 45 votes cast for the Union in the January 2002 election and
created the impression of surveillance and that Respondent
thereby violated Section 8(a)(1) of the Act. See Gupta Permold
Corp., 289 NLRB 1234, 1247 (1988).
9. Paragraphs 5(k) and (l) of the complaint allege that
in or about December 2001, Second-Shift Department
Manager Josue Cardona and Assistant Department Head-
Grocery Shipping Keith Hankerson threatened employees
with loss of jobs as alleged in paragraph 5(l) and that they
would not be able to address grievances to their supervisors
as alleged in paragraph 5(k) if the Union were selected as
their collective-bargaining representative
In support of these allegations, Garcia testified that in De-
cember 2001, shortly before the election held in January 2002,
Josue Cardona, who is the department head of night-shift op-
erations and Keith Hankerson the assistant department head
spoke to the employees during the warmup meetings held at the
start of the shift. Normally these warmup meetings were con-
ducted by first-line supervisors. The supervisors used this time
to bring the employees up to date on any job-related informa-
tion or any occurrences on the prior shift. It was highly unusual
for these meetings to be conducted by Hankerson and Cardona.
However, they did so in response to the union campaign in
order to educate the employees as to the reasons for the Com-
pany’s opposition to the Union and testified that they were
given “talk sheets” of information by Respondent’s labor rela-
tions management to memorize each evening for delivery to the
employees the next day.
Garcia testified that at the warm up meetings Hankerson told
the employees that if they had a problem with their production
percentages to see their supervisor who would fix it. Hankerson
also said that if there was a union, the supervisors would not be
able to do this. Garcia also testified that Cardona also told the
employees that if they had a problem with their percentages to
see their supervisor and he could fix it but that if the Union was
there, they would not be able to do that. The percentages refer
to the productivity of the employees. Hankerson admitted at the
hearing that he did inform the employees that if they had a
problem with their percentage and productivity level, they
should come to their supervisor who could adjust it. Cardona
testified he did not recall what he said at these meetings. The
supervisory talk sheets were not introduced. I credit the testi-
mony of Garcia which was admitted by Hankerson and not
specifically rebutted by Cardona.
I find that the Respondent violated Section 8(a)(1) of the Act
by Hankerson’s and Cardona’s statements to the employees that
they would lose the right to adjust grievances with their super-
visors if the Union were selected by the employees. I note that
Garcia testified about the loss of benefits which was not alleged
as a violation, but that he did not specifically testify that
Hankerson or Cardona threatened them with loss of jobs.
10. Paragraph 5(m) alleges that in/or about mid- and late
December 2001, Respondent by Jack Mosko and Mark
Codd during meetings held at its facility threatened
employees with loss of jobs and benefits if they selected
the Union as their bargaining representative
There were three sets of meetings held by Respondent in its
efforts to defeat the Union in the upcoming election set for
January 3 and 4, 2002. The first set referred to as roundtable 1,
was held on about December 12 to 14, 2001. The second set
referred to as roundtable 2 was conducted on/or about Decem-
ber 26 to 28, 2001. The third set of meetings (the 25th-hour
speech) was conducted December 31, 2001, and January 1 and
2 (2002). The first two sets of meetings were mandatory. The
third was not. Pacheco, Marin, Garcia, and Hooks testified
about these meetings which were conducted by Mosko and
Codd. At these meetings Publix used a power point presenta-
tion with Curtis Palmore, Respondent’s former human re-
sources representative operating a slide projector for the power
point presentation. Codd and Mosko each spoke to the employ-
ees at the meeting with Codd giving the major portion of the
presentation. Codd and Mosko followed the power point pres-
entation outline. They did not read verbatim from a script or
statement.
Pacheco, Marin a current employee, Garcia, a current em-
ployee, and Hooks testified as to what was said by Mosko and
Codd at these meetings. Their testimony differed in both sub-
stance and emphasis from that of Mosko and Codd at the hear-
ing. They testified that Codd and Mosko stated in broad based
terms that if the employees selected the Union as their collec-
tive-bargaining representative, the employees could be called
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1454
out on strike without notice of an employee vote on the deci-
sion to strike, could be replaced if they went on strike with no
explanation as to what their rights as an unfair labor practice or
economic striker to return to work immediately in the case of
an unfair labor practice striker or to be placed on a preferential
hire list in the case of an economic striker. Respondent’s repre-
sentatives at these meetings stated that the employees could
lose wages and benefits and equated collective bargaining as a
“gamble.” Pacheco testified that on several occasions at these
meetings Codd stated that they would start at zero at the com-
mencement of any bargaining. The employees also testified that
they were told their wages were frozen. Respondent’s represen-
tative Curtis Palmore testified that the employees were told that
wages and benefits would be frozen if the Union were selected
to represent the employees. I note also that one of the scripts
entered into evidence by Respondent states that employees will
lose individual rights if they vote for the Union. There was also
disparity between the employees’ version and Respondent’s
witnesses version as to how collective bargaining works with
the employees testifying they were told that employees could
lose wages and benefits they already had, whereas Codd and
Mosko testified they told the employees that in the event of
bargaining, the employees’ wages and benefits could go up or
down or remain the same. In support of Respondent’s antiunion
position, employees were told the Unions were crooks and that
Union Representative and Organizer Steve Marrs was paid
$150,000 a year without regard to how much of that was actu-
ally salary or organizing expenses.
I recognize that there is a potential for misunderstanding by
employees who are not familiar with labor law and whose first
language is Spanish, as in this case. However, I am convinced
that Codd and Mosko were giving the employees broad bush
assertions that they could be forced out on strikes without a
vote, could lose wages and benefits in bargaining, could lose
individual rights, that their wages and benefits could start at
zero, and that their jobs could be lost as a result of the Union’s
selection as their collective-bargaining representatives. I find
Respondent violated Section 8(a)(1) by these statements.
11. The denial of Garcia’s request for a witness
Paragraphs 6(a), (b), and (c) of the complaint allege that
Tanya Brown, Respondent’s human resource investigator de-
nied the request of employee Joaquin Garcia to have a fellow
employee present during an interview, that Garcia had reason-
able cause to believe that the interview would result in discipli-
nary action against him and that Brown denied Garcia’s request
and conducted the interview.
It is undisputed that on May 27, 2002, Brown conducted a
meeting with Garcia to investigate a formal complaint that had
been filed by employee Renzo Parodi. Garcia testified that
Brown told him she wanted two things from him, to be honest
and accurate and Garcia said OK. Brown then asked him if he
had told Sam Luciano or John Santa Maria “something.” Garcia
said he did not know what she was talking about and asked her
to be more specific. He then asked Brown if this was an inves-
tigation and Brown said yes. At that point Garcia said, “I want
a witness.” Brown said, “Oh, you want a witness,” Garcia said,
“[Y]es. Brown said, “OK,” but continued to ask him if he had
said something about Parodi and a date. Garcia again told her,
he did not know what she was talking about. Brown then said,
“OK,” and ended the meeting. Brown admitted to these facts at
the hearing but contended she did not think Garcia needed a
witness because Mosko had already conducted an investigation
and had found no misconduct justifying any discipline.
Weingarten rights were extended to nonunion worksites in
Epilepsy Foundation of Northeast Ohio, 331 NLRB 676
(2000). Employees may choose a representative to be present
on their behalf at an investigatory interview which may result
in discipline. Accordingly Brown’s undisputed refusal to permit
Garcia to have a witness and her conduct of the interview
which could have resulted in discipline was a violation of Sec-
tion 8(a)(1) of the Act. Respondent in an attempt to repudiate
Brown’s conduct posted a memo which stated, “on approxi-
mately May 27, 2002, Human Resources Representative Tanya
Brown failed to grant an associate’s request to have a witness
present during an interview. Ms. Brown’s actions were contrary
to Publix’s policy and may have been unlawful under the Na-
tional Labor Relations Act.” The memo also stated that Publix
would not interfere with the Section 7 rights of the employees
in the future. In Passavant Memorial Area Hospital, 237 NLRB
118, 139 (1978), the Board held that to be effective the repudia-
tion must be timely, unambiguous, specific and free from other
proscribed illegal conduct and there must be adequate publica-
tion to the employees involved. In the instant case before me
Respondent did not establish that all employees were ade-
quately informed. I find Respondent’s refusal to honor Garcia’s
request for a representative violated Section 8(a)(1) of the Act.
12. Alleged 8(a)(3) violations by the disciplines issued to
Luis Pacheco and by Respondent’s discharge of him
This portion of the complaint is concerned with the issuance
of oral and written warnings to employee Luis Pacheco and his
discharge. As part of the overall distribution process of the
warehouse operation, the Respondent employs several catego-
ries of employees. It employs selectors who receive orders for
product to be shipped to the stores served by the warehouse. It
employs forklift operators who move the selected product to the
loading dock and place it near the trucks which are to carry the
product to the stores. It employs one loader per shift who loads
the product onto the trucks and seals the trucks for the transport
of the products. In the course of his duties, the loader will make
adjustments as necessary such as to place overages on another
truck when there is not enough space on a truck to carry all of
the product that has been ordered by a store. The loader must
route the delivery of these partial loads which may be required
to be shipped on the same truck along with other product des-
tined for other stores. The Respondent utilizes a progressive
discipline system progressing from oral and written warnings to
discharge for various infractions, performance problems, and
attendance problems. At issue in this case is whether Luis
Pacheco was discriminated against in the administration of
discipline to him because of his engagement in protected con-
certed activities on behalf of the Union. At the time of his dis-
charge in March 2002, Pacheco was an 8-year employee who
had received favorable reviews for his job performance with the
most recent review in January 2002, for the period of July
PUBLIX SUPER MARKETS 1455
through December 2001. However, Pacheco had received oral
and written warnings in the past and his ultimate discharge was
purportedly based on these as well as the final alleged infrac-
tion for which he was discharged. The issues in this case were
vigorously contested by the parties throughout the hearing and
in the briefs of the General Counsel and counsels for the Re-
spondent. Under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982),
the General Counsel has the initial burden to establish that:
1. The employees engaged in protected concerted ac-
tivities;
2. The Respondent had knowledge or at least suspi-
cion of the employees’ protected activities;
3. The employer took adverse action against the em-
ployees;
4. A nexus or link between the protected concerted
activities and the adverse action underlying motive.
Once these four elements have been established, the burden
shifts to the Respondent to prove by a preponderance of the
evidence that it took the adverse action for a legitimate nondis-
criminatory business reason. In the instant case Pacheco was a
leading union supporter well known to management who was a
named plaintiff in a class action suit filed by several Hispanic
employees against the Respondent alleging discrimination. He
had handbilled employees at the warehouse and home called
employees on behalf of the Union. Pacheco continued to hand
bill the Respondent on behalf of the Union even after the elec-
tion held on January 3 and 4, 2002. The record also shows that
on one occasion a day prior to the issurance of a warning of
Pacheco he had appeared before Manager Mosko in an attempt
to represent an employee based on Epilepsy, supra. I conclude
that Pacheco engaged in protected concerted activities on be-
half of the Union and that Respondent had knowledge of his
concerted activities. It is undisputed that Respondent took ad-
verse actions against Pacheco by its issuance of the warnings
against Pacheco and by its discharge of him. The evidence also
supports a finding that the Respondent engaged in disparate
treatment of Pacheco by its discipline of him for similar of-
fenses of other employees that were tolerated by management. I
find that based on the record as a whole as set out above the
Respondent had animus against the Union and its supporters
which had been openly expressed by Respondent’s manage-
ment and which had been manifested in its conduct wherein its
management engaged in threats of loss of jobs and benefits.
The unrebutted testimony of current employee Linarte estab-
lished that Supervisor Funes had accurately predicted the dis-
charge of employee Tarvis Hooks. Additionally, the close tim-
ing of the discharge of Hooks and Pacheco gives rise to the
inference that they were discharged because of their union ac-
tivity as predicted by Supervisor Funes. I conclude that based
on the foregoing there is a nexus between the protested con-
certed activities and the adverse action underlying motive. Un-
der Wright Line the burden has accordingly shifted to the Re-
spondent to prove by a preponderance of the evidence that it
took the adverse actions for a legitimate nondiscriminatory
business reasons. Manno Electric, 321 NLRB 278, 280 at fn. 12
(1996); La Gloria Oil & Gas Co., 337 NLRB 1120, 1123
(2002).
Respondent’s progressive discipline system is contained in
Volume 4 of its managers reference library which is updated
and kept in each department periodically. It provided that em-
ployees received a first documented oral counseling when an
employee has an incident or pattern of unacceptable behavior in
a single area of behavior. A second documented oral counseling
may be issued to employees when they have an incident or
pattern of unacceptable behavior unrelated to the first area.
Employees received written counseling for a second incident of
the same behavior, following an incident or pattern of unac-
ceptable behavior related to the first area. Employees receive
written counseling for a second incident of the same behavior,
following an incident or pattern of unacceptable behavior after
a second documented oral counseling has been conducted and
occurs during the active time limits of a written counseling
statement, and there is an incident, problem or pattern of unac-
ceptable conduct requiring additional counseling that is likely
to result in a final written counseling statement of the em-
ployee’s termination. A final written warning is issued when
the employee demonstrates any incident or pattern of unaccept-
able behavior and when during the active time limits of a final
warning, an incident, problem, or pattern of unacceptable con-
duct occurs that would require additional documented counsel-
ing likely to result in the employees’ termination. Discharge
follows a final written counseling statement. The time limit for
an oral counseling statement is 6 months from the date of coun-
seling. The time limit for a written counseling statement and
final warning is 1 year. The guidelines provide that a supervisor
should be specific about the behavior when documenting coun-
seling statements.
An attendance and punctuality policy is also contained in the
managers reference library. The policy designates instances
when an employee punches in between 4 to 7 minutes late as a
“K-LATE”. A “LATE” is 8 or more minutes after the starting
time. Three “K-LATES” equal one “LATE.” Employees are
permitted five lates before receiving discipline and losing
points on their evaluation. All employees are covered by this
attendance and punctuality policy. Supervisors are to review
attendance and punctuality of the employees they supervise
once a week. Discipline is initiated when an employee has five
lates in a rolling 6-month period.
Pacheco was a loader and an 8-year employee at the time of
his discharge. He moved from the night shift to the day shift in
late 1999 or early 2000. Initially, his start time was 4 a.m. and
was later changed to 4:30 a.m.. On May 3, 2001, Supervisor
Keith Thomas issued Pacheco an oral warning for tardiness. On
the day prior to this, Pacheco had attempted to represent em-
ployee Domingo McCoy who had been called to the office.
McCoy feared that he might incur discipline and asked Pacheco
to serve as his witness in accord with Epilepsy, supra. However,
Pacheco was sent back to work by Mosko.
The General Counsel does not dispute that Pacheco was late
on the dates indicated on his May 3, 2001 discipline but con-
tends that the supervisors were not following the policy consis-
tently. Pacheco testified without rebuttal that none of his super-
visors had reviewed his punctuality and attendance record with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1456
him during that 6-month period. He testified that Josue Cardona
had a practice of reviewing his punctuality and attendance re-
cord with him every 3 months and telling him how many occur-
rences he had before he would be subject to discipline. Keith
Thomas took over Josue Cardona’s position in late 2000. The
oral warning issued by Thomas for tardiness on May 3 was
noted by Thomas on the back of Pacheco’s attendance report
for 2001. Tice testified it was Respondent’s policy and practice
to review attendance and punctuality reports with employees
periodically. Thomas admitted he did not do so. The General
Counsel notes that April 20 was the date that Pacheco was late
which put him over the limit and that Pacheco worked from
April 20 to May 3, 13 days later, to issue discipline. The Gen-
eral Counsel contends that Thomas’ failure to review Pacheco’s
attendance and punctuality record with him before he went over
the limit is suspicious because Thomas testified he checked the
attendance report weekly.
In January 2001, Thomas gave Pacheco his evaluation but
did not sit down with Pacheco which is the normal practice.
This evaluation covered the 6-month period from July to De-
cember. This evaluation does not mention punctuality. Addi-
tionally, Thomas told Pacheco he was excusing his K lates.
There is no other evidence in the record as to whether other
supervisors were excusing K lates. The General Counsel notes
that this is evidence that supports the inference that there was
no uniform policy being followed in this respect. Thus, the
issuance of the evaluation to Pacheco with no mention of atten-
dance or punctuality problems had the effect of lulling Pacheco
into a false security that he was not at risk for discipline for
attendance and punctuality shortcomings.
Pacheco received a written warning for tardiness on May 24,
2001, for arriving late for work on that date at 4:51 a.m.,
Pacheco admits he was late but contests this discipline on the
ground that the prior one was unlawful. Additionally, Pacheco
testified that Respondent was not administering its punctuality
and attendance policy in a consistent manner. Pacheco observed
other employees such as Henry Ferguson, Yvonne MacLain,
Paul Kennedy, Daniel McDuffy, and Sheryl Quant punch in
late for work and contends they were not disciplined as they
were sufficiently late enough to have warranted termination if
the supervisors had been applying the policy consistently.
Pacheco also testified that Henry Ferguson, who worked as a
receiver and who opposed the selection of the Union, was
scheduled to start at 3:30 a.m. and was late. This appears to be
borne out by his attendance report. Mosko testified he was not
late because a manager (who he could not identify) permitted
Ferguson to come in on his day off. The General Counsel ar-
gues in brief that similarly antiunion employee, Paul Kennedy,
a pest control lead person was scheduled to start at 3:30 a.m.
but was late on May 21, 22, 23, and 25, 2001, when he punched
in at 7:15, 6:26, 6:19, and 3:33 a.m., respectively. Mosko testi-
fied that Kennedy had the flexibility to start later. The General
Counsel contends that Mosko’s testimony is not credible be-
cause Kennedy’s attendance and punctuality report shows that
supervisors were holding him to a specific start time.
Based on the above, the General Counsel contends it has es-
tablished a prima facie case. Pacheco a longtime, well-known
union supporter, on the day before he received the May 3 oral
warning had attempted to engage in concerted activity by going
with McCoy to Mosko’s office to represent him which estab-
lished a nexus between Pacheco’s concerted activities and the
warning. The General Counsel also contends that an indication
of pretext is the 13-day delay by Respondent in issuing the
warning to Pacheco. The General Counsel contends she pre-
sented concrete examples of employees who deserved disci-
pline under the policy and did not receive it. She contends Re-
spondent seized on Pacheco’s tardies as a pretext to terminate a
Union activist as demonstrated by the far worse records of em-
ployees McDuffy, MacLain, Quant, Ferguson, and Kennedy.
She accordingly contends the issuance of the May 3 and 25,
2001 oral and written warnings for punctuality were in viola-
tion of Section 8(a)(3). New Otani Hotel & Garden, 325 NLRB
928 (1998).
The General Counsel also contends that the issuance of the
final warning to Pacheco on February 14 for a mis-ship was
pretextual in violation of Section 8(a)(3). Following the elec-
tion of January 3 and 4, 2003, Pacheco and Hooks who had
been observers for the Union and Garcia began getting cards
signed again in view of Supervisors Funes and Cardona in front
of the timeclock while they were off the clock. A mis-ship is a
quantity of merchandise that is put on the wrong trailer and
goes to the wrong store. Prior to the fall of 2000, employees
who had mis-ships were only issued a manager’s statement and
mis-ships were not subject to progressive discipline. After the
fall of 2000, Mosko eliminated the manager’s statement and
employees went straight to an oral counseling statement.
Mosko did not know if the employees knew about the change
and considered this a management prerogative.
Pacheco testified concerning his extensive duties as a loader.
Initially he reviews the load sheets on which the selectors have
indicated where they have put their pallets. He posts the load
sheets on the dock for the selectors, puts the numbers on the
doors, sets up the ramps and calls for trailers to be removed if
they are not to be used. He is in charge of the loading of the
trailers and places pallet selects in the trailers. He signs the load
sheet after he places them in the trailers. He obtains paperwork
known as Pallet Recap which shows how many cases and pal-
lets are going to specific stores. He determines whether there
are any overages. A trailer holds only twenty-two pallets. Any-
thing additional is an overage. He makes a route for the driver
to deliver the overages. He then faxes the overage to dispatch
and they send a driver to pick up the trailer.
While loading he matches the tags that have the door num-
ber, name of product, date, location of product, and store num-
ber to ensure the products are correctly delivered to the stores.
He also checks Gia Russo which is merchandise from an out-
side vender which are placed on the dock for delivery the next
day. He obtains bills of lading from the office, closes and seals
the trailers, and faxes a copy of the delivery sheets to dispatch.
The bill of lading is identical to the store order. If something is
not delivered the store will call the warehouse. Pacheco then
picks up the signage sheets and tells the supervisor (according
to his testimony) that he was ready to go and for the supervisor
to check the dock. He then punches out.
In the 2-week period prior to February 14, 2002, Respondent
had reduced the number of doors available for use and forced
PUBLIX SUPER MARKETS 1457
Pacheco to use the same doors more often than before which
increased the traffic on the dock and limited the space available
on the dock. This caused confusion on the dock.
Pacheco admitted that he loaded the wrong pallet of apple
juice that had been prematurely bumped up to the dock early. It
was for store 213 and had the same door number as store 679
which was scheduled to go out at 11:30 a.m., while store 213
was not scheduled to go out until 3:30 p.m. that day. Pacheco
learned of the mis-ship when he observed the pallet inside the
trailer for store 679 when it returned. As the trailer had to return
to the warehouse, there was no extra trip or other loss as a re-
sult as Pacheco loaded it with the proper trailer and it was de-
livered to the store as originally scheduled. Later that day, Su-
pervisor Wendell Braye asked Pacheco about the pallet and
Pacheco told him it had been removed from the wrong trailer
and loaded on the correct trailer and Braye said, “[G]ood
work.” The next day, Supervisor Thomas issued Pacheco a final
warning for a mis-ship which the General Counsel contends
was a “set-up.” She notes the failure of Respondent to investi-
gate who sent the apple juice up early. Thomas talked to Cox
and Tice and did not inquire of Braye regarding the matter and
Thomas testified it was necessary to give Pacheco a final warn-
ing after Cox and Tice told him discipline was necessary. Tho-
mas admitted on cross-examination that the apple juice had
been delivered to the store as scheduled and no special trip was
necessary.
Pacheco met with Supervisors Cox, Tice, Thomas, and Braye
and explained that the mis-ship was made as a result of the
early bump up of the apple juice. Respondent offered no evi-
dence as to why the apple juice was bumped up to the dock
prematurely. This did not change the discipline.
Pacheco testified that on January 20, 2002, Tice and Braye
blamed Pacheco for a mistake in the paperwork made by anti-
union employee McDuffy but upon learning that the error was
not made by Pacheco, Tice, and Braye did not take any action
against McDuffy. The record evidence further shows that anti-
union employees were the recipients of leniency for errors
whereas Pacheco was not. Ronnie Mathis had received disci-
pline for four mis-ships and under the progressive disciplinary
system should have been discharged but his levels of discipline
were backed up one step because supervisors were not adminis-
tering the productivity standards consistently. McDuffy was not
given a warning for an incident of error in paperwork that sent
an entire truck to the wrong store. Manager Mosko contended
this was not a mis-ship. Employee Jamal Harvey had a mis-ship
and was not disciplined as did employee Tarvis Baker, who
also was not disciplined according to the testimony of Leadman
Marin. Marin also testified that Jerome Scott was not disci-
plined for mis-ship which occurred on March 25. The General
Counsel contends that the foregoing demonstrates that the issu-
ance of the final warning to Pacheco was pretextual. The Gen-
eral Counsel accordingly contends that the suspension and dis-
charge of Pacheco was pretextual.
Night-Shift Leadman Marin testified that the day after Hooks
was discharged in March he arrived at work around 12:30 p.m.
and saw Pacheco who was some distance away. The dock was
clear and Marin got his paperwork and commenced work. He
opened the trailer door and put up his load sheets. Selectors
arrived at 1:30 p.m. and loaders arrived at 2 p.m. He observed
the Gia Russo was located by the scale and mixed in with “re-
pack” (which is repackaged products). He walked to the office
and on his way back observed two pallets of product for store
91 which were 2-feet high the same as the Gia Russo. He
checked the sticker and went to the computer and learned that
Vincent Dobson had selected the product. Marin then called Joe
Dineen in dispatch about the two pallets. Dineen told him to put
them in his overage. As he was doing the paperwork for the
overage, Joe Cox, Jack Mosko, and Keith Hankerson walked by
and inquired about the two pallets. He told them they belonged
to the day shift and were going out on his overage. They told
him to remove a sticker from each pallet and give it to
Hankerson. Marin did not see the pallets before Pacheco left.
Pacheco testified that on March 13, prior to leaving, he told
his supervisor, Thomas, that he was finished and Thomas said,
“[L]et me walk to the dock with you.” He did so and Thomas
said everything was good. Pacheco punched out at 12:18 p.m..
Pacheco received a call from Garcia that evening who told him
that all the supervisors were gathered on the dock and said that
Pacheco had left some pallets out. Garcia also told Pacheco that
Supervisor Funes told him that the supervisors had just got out
of a big meeting and they were going to get rid of another one
of them. Pacheco reported to work the next day as usual and
was called around 9 a.m. to Tice’s office. Tice told him that he
had left some pallets for store 91. Pacheco told Tice he did not
see the pallets and that they were not on the dock when he left
and that Thomas had walked the dock with him. Tice sus-
pended him and said someone would be in touch with him.
After Pacheco did not receive a call, he called Mosko’s office
on Friday but was not able to reach him until the following
Monday. Mosko told him the termination would stand.
In contrast, Supervisor Thomas testified he did not walk the
dock with Mosko, had no conversation with Pacheco on
May 13, did not and does not normally check the dock. I credit
Thomas in this regard. Cox testified that he was walking the
dock with Cardona and Hankerson and Marin approached them
and asked why there were three pallets close to door 91 left on
the dock. They did not know so Tice told Marin to take a
sticker off the two pallets and give them to Tice to check. Di-
neen testified that store 91 did not report a shortage. The Gen-
eral Counsel contends that there would be no reason for Marin
to approach the warehouse superintendent and department
heads and that it is more likely that Mosko, Cox, and Tice
heard of this from Hankerson and “swooped down to the dock.”
She further argues that Respondent rushed to judgment to rid
itself of a leading union adherent. She also notes that no one
talked to Dobson about the pallets. She notes that no one had
ever been disciplined for leaving pallets on the dock before.
As set out above, I find that the General Counsel has estab-
lished a prima facie case of violations of Section 8(a)(1) and (3)
of the Act by the oral warning issued to Pacheco for tardiness
on May 3, 2001. As this oral warning was an essential step for
the imposition of the subsequent discipline, those disciplines
were also violative of the Act.
In making credibility determinations, I have considered the
record as a whole and the interests of the parties who testified
in this proceeding. I have found credible the testimony of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1458
employee witnesses who have testified against their pecuniary
interests such as the testimony of Garcia and Marin who remain
as current employees and who testified adversely to the Re-
spondent’s position in this case. I credit the unrebutted testi-
mony of Marin of threats issued by Supervisor Funes concern-
ing the Respondent’s plans to discharge prounion employees
and the timing of the discharges of prounion employees which
came about as predicted by Funes. I find these threats and the
close-in-time discharges to be significant. I also find that the
Final Warning for the mis-ship and the suspension and dis-
charge of Pacheco were pretextual and that Respondent en-
gaged in disparate treatment of Pacheco as it seized on his al-
leged infractions as a means to discharge him and rid itself of a
leading union supporter while excusing the conduct of other
employees for comparable offenses as set out above. I find
whether Pacheco failed to see these pallets or they were placed
on the dock after he left is not determinative. I thus conclude
that Respondent has failed to rebut the prima facie case by the
preponderance of the evidence.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The security guards were acting as agents of Respondent
within the meaning of Section 2(13) of the Act.
4. The Respondent violated Section 8(a)(1) by:
(a) Disparately applying Respondent’s no-solicitation/no dis-
tribution rule by precluding the posting of union materials.
(b) Threatening employees with plant closure if they selected
the Union as their bargaining representative.
(c) Threatening to deny employees employment opportuni-
ties if they selected the Union as their bargaining representa-
tive.
(d) Threatening to discharge employees because they en-
gaged in concerted, protected activities by trying to assist fel-
low employees to address work-related issues with Respondent.
(e) Threatening employees with discharge because they en-
gaged in union activities and harassing employees by request-
ing that employees report to Respondent the union activities of
other employees.
(f) Threatening its employees with discharge and unspecified
reprisals in retaliation for their concertedly filing a lawsuit
against Respondent concerning their terms and conditions of
employment.
(g) Prohibiting employees from parking in Respondent’s
parking areas in order to discourage them from distributing
prounion handbills.
(h) Threatening employees that they would not be able to
address grievances with their supervisors if they selected the
Union as their bargaining representative.
(i) Threatening employees with loss of jobs, wages, and
benefits if they selected the Union as their bargaining represen-
tative.
(j) Creating the impression among its employees that Re-
spondent was engaging in surveillance of their union activities.
(k) Threatening to discharge employees in retaliation for
their union activities.
(l) Denying the request of its employee Joaquin Garcia to
have a fellow employee present during an investigatory inter-
view when he had reasonable cause to believe that the inter-
view would result in disciplinary action being taken against
him.
5. The Respondent violated Section 8(a)(3) and (1) of the
Act by issuing warnings to Luis Pacheco on May 3 and 25,
2001, and February 14, 2002, by suspending him on March 14,
2002, and discharging him on March 15, 2002.
6. The above unfair labor practices in connection with the
business of the Respondent have the effect of burdening com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in violations
of the Act, it will be recommended that Respondent cease and
desist therefrom and take certain affirmative actions designed
to effectuate the purposes and policies of the Act and post the
appropriate notice.
It is recommended that Respondent rescind the unlawful
warnings and discharge of employee Luis Pacheco and offer
him full reinstatement to his prior position or to a substantially
equivalent one if his prior position no longer exists. Pacheco
shall be made whole for all loss of backpay and benefits sus-
tained by him as a result of the unlawful warnings and his
unlawful discharge.
These amounts shall be computed in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987), at the “short term Federal rate” for underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
[Recommended Order omitted from publication.]