San Garbriel Transit, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 1, 2011

21-CA-039559 (N.L.R.B. Aug. 1, 2011)

JD(SF)-27-11
El Monte, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN GABRIEL TRANSIT, INC.
and Case 21-CA-39559
ANGEL REYES RUIZ, an Individual
and Case 21-CA-39573
ELMA LURANCI ORDOÑEZ, an Individual
Irma Hernandez, Esq., for the General Counsel
Erick J. Becker, CEO, American Consulting Group,
for Respondent, Mission Viejo, California.
DECISION
I. Statement of the Case
LANA PARKE, Administrative Law Judge. Pursuant to charges filed by individuals Angel
Reyes Ruiz (Reyes) and Elma Luranci Ordonez (Ordonez), the Regional Director for Region 21
of the National Labor Relations Board (the Board) issued the Order consolidating cases,
consolidated complaint and notice of hearing (the complaint) on February 18, 2011.1 The
complaint alleges that San Gabriel Transit, Inc. (Respondent) violated Section 8(a)(3) and (1) of
the National Labor Relations Act (the Act).2 This matter was tried in Los Angeles on May 9 and
10, 2011.
II. Issues
A. Did the Respondent violate Section 8(a)(3) and (1) of the Act by discharging
Reyes Ruiz on September 22.

1 All dates herein are 2010 unless otherwise specified.
2 At the hearing, the General Counsel amended the complaint to correct a misdate and a
misspelling and to add the names of Road Supervisors Eduardo Dominguez and Eugene Estrada
as agents of Respondent within the meaning of Sec. 2(13) of the Act, which allegation was
admitted by Respondent.
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B. Did the Respondent violate Section 8(a)(1) of the Act by the following conduct:
threatening an employee with unspecified reprisals; threatening an employee with
job loss; polling and/or interrogating employees about their sympathies for the
Wholesale Delivery Drivers, General Truck Drivers, Chauffeurs, Sales and
Industrial Allied Workers, Teamsters Local 848 (the Union).
III. Jurisdiction
At all material times, Respondent, a California corporation with its principal offices
located at 3650 Rockwell Avenue, El Monte, California (the facility) has engaged in the business
of providing transportation services. During the 12-month period ending July 15, a
representative period, Respondent, in conducting its business operations derived gross
revenues in excess of $1 million and purchased and received at the facility goods and materials
valued in excess of $50,000 directly from points outside the State of California. I find that at all
material times Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
IV. Findings of Fact
Unless otherwise explained, findings of fact herein are based on party admissions,
stipulations, and uncontroverted testimony regarding events occurring during the period of time
relevant to these proceedings.3 On the entire record, including my observation of the demeanor
of the witnesses, and after considering the briefs filed by General Counsel and Respondent, I
find the following events occurred in the circumstances described below during the period
relevant to these proceedings:
A. Respondent’s Business
Under contract with Access Services, a California-mandated public paratransit service
for functionally disabled individuals in Los Angeles County, California, Respondent provides
transportation services in Los Angeles County for individuals eligible for paratransit under the
Americans with Disabilities Act. In 2010, Respondent employed about 187 drivers to transport
Access-eligible riders. Riders may pay the transportation fare with coupons issued by Access,
tokens from the County Metropolitan Transit Authority (MTA), or cash. Each Access coupon is
worth $2.25 and is good for one trip of up to 19.9 miles. Any trip over that distance requires an
additional fare of $.75, usually paid with a Zone Coupon. Access coupons are issued in books
of 10. Each book is identified with a number unique to the specific coupon book, and the
coupons, in addition to the book number, bear, seriatim, the letters A through J. The numbering
and lettering system permits ownership identification of each coupon. Riders may purchase
coupon books from Access or receive them from Regional Centers.4

3 Counsel for the General Counsel’s unopposed posthearing motion to correct the transcript is
granted. The motion and corrections are received as ALJ Exh. 1.
4 Regional Centers are nonprofit agencies that contract with the government to provide a
variety of services to the disabled, including in addition to transportation, job placement and
living arrangements. Regional Centers may provide coupon books to eligible riders without
cost.
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Respondent utilized a computerized dispatch system to route drivers, who were given a
daily route showing designated pickup and drop-off locations for each passenger (client) on an
in-vehicle monitor known as a Mobile Data Terminal. At each pickup, the client paid the driver
the fare by coupon, MTA token, or cash, all of which each driver put into a fare bag. Drivers
filled out a "driver's trip log" each day, in which the driver hand-wrote each client’s name,
whether a client was a no-show, the number of passengers that paid a fare, and the amount
paid by the passengers. Drivers were not required to document passengers’ payment methods
or coupon numbers/letters.
At the end of each shift, all drivers turned in their fare bags containing the coupons
and/or tokens collected during the shift. Each driver retained all collected cash. Respondent—
by reviewing each driver’s trip log, computerized trip sheet, and turned-in coupons/tokens—
ascertained the amount of cash each driver had collected and retained. That cash amount was
thereafter deducted from the driver’s subsequent paycheck.
In order to avoid paycheck deductions for collected cash, some drivers purchased
coupons from clients or from coworkers (whom clients occasionally tipped with coupons). 5
Drivers then placed the purchased coupons in the fare bag, exchanging them for cash
collections. Drivers were not disciplined for buying coupons, although Respondent’s general
manager told employees she thought it was a bad idea.
At all material times, the following individuals held the positions set forth and were
supervisors of Respondent within the meaning of Section 2(11) of the Act, and/or agents of
Respondent within the meaning of Section 2(13) of the Act:
Stacey Murphy (Murphy) General Manager
Corey Barratt (Barratt) Supervisor
Petros Keshishian (Keshishian) Manager
Devin Bahariance (Bahariance)6 Operations Manager/Supervisor
At all material times, the following individuals in the positions set forth were agents of
Respondent within the meaning of Section 2(13) of the Act:
Eduardo Dominguez (Dominguez) Road Supervisor
Eugene Estrada (Estrada) road supervisor
David Acosta (Acosta) labor consultant
Hector Barcenas (Barcenas) labor consultant
Patrick Lopez (Lopez) labor consultant
B. Respondent’s Knowledge of Union Activities
In about March, the Union started an organizing campaign among Respondent’s drivers,
which culminated in a Board-conducted election among 193 eligible drivers on August 12 and
13. Respondent received 11 more votes than the Union; certification of election results issued
September 13.

5 There is no evidence as to whether coupon holders who sold their coupons generally sold
them for a discounted rate or if the coupons they sold had been furnished to them at no cost.
6 The name of Devin Bahariance appears as correctly stated at the hearing.
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During the campaign, Reyes, a driver of about 8 years, solicited authorization cards from
coworkers, obtaining 70-75 signed authorization cards from coworkers.7 Sometime in July as
Reyes was making a scheduled pickup, Dominguez asked him if he was gathering signatures
on cards, which Reyes denied. Later that same month, on Reyes’ day off, Estrada spoke to
Reyes in a grocery parking lot near a regular pickup location and accused him of trying to gather
more signatures, saying that what Reyes was doing was not good. For nearly 6 weeks in July
and August during work hours at the facility, Reyes openly wore a union pin and sticker on his
shirt.
C. Alleged Violations of Section 8(a)(1) of the Act
1. Alleged Statements to Ordonez
Ordonez worked for Respondent for about 5 years until her termination on
September 17. During the union campaign, she frequently distributed flyers to fellow drivers
entering the facility. After Ordonez completed her shift on July 21, Bahariance gave her a
written warning for not coming to work the previous day, which Ordonez refused to sign.
According to Ordonez, the following transpired: Bahariance told Ordonez, “You draw a line
between the employees and the company by going to [the] Union.” Bahariance added that
because employees had gone to the Union, they were no longer Respondent’s friends; they
were its enemies.
At that point, Keshishian entered the office. Ordonez told him Bahariance had given her
a warning. Keshishian asked Bahariance to leave. After he left, Keshishian told Ordonez that
management was stressed because of the Union. Keshishian said employees had drawn a line,
built a wall between the Respondent and the drivers, and stabbed Respondent in the back by
going to the Union. He told Ordonez she would be in trouble if she were late by 10 minutes but
assured her that if she ever got written up for being only 2 to 5 minutes late, she could go to
him, and he would take care of it. When Ordonez told Keshishian the Union could help her,
Keshishian told her that as soon as the “union thing” is done, things were going to change; the
Company was going to hire new people.
Both Bahariance and Keshishian testified about their July 21 interaction with Ordonez.
According to Bahariance, he only mentioned the Union to Ordonez when he told her that if the
Union came in, it might result in the Union “passing” attendance rules with a point system, which
would mean Ordonez would no longer have a job because of her attendance problems.
Keshishian denied discussing anything about the Union with Ordonez. I found Ordonez to be a
straightforward and candid witness.8 After considering the demeanor of the witnesses, I accept
Ordonez’ account of her conversations with Bahariance and Keshishian on July 21.
2. Alleged polling of employees
During the union campaign, Respondent’s labor consultants, Acosta, Barcenas, and
Lopez (collectively the consultants) conducted employee meetings at the facility. About 2-3

7 Reyes gathered some signatures at the facility but gathered most when drivers’ paths crossed while
route driving.
8 Respondent contends that Ordonez’ termination by Respondent resulted in a bias against
Respondent demonstrable in her testimony. Although Ordonez’ testimony suffered from some of
the hesitations and misunderstandings frequently attendant to translation, I saw no signs of
bias.
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weeks before the election, Ordonez attended one such meeting in the training room, along with
about 11 other employees. Lopez and Barcenas sat at a table located in the front of the training
room. On the table was a basket containing red plastic bracelets with "no to union" printed on
them and a stack of purple flyers.
At the end of the meeting, Lopez invited employees to take the bracelets, saying the
bracelets were free and if employees wanted, they were free to get one. As employees left the
meeting, Lopez and Barcenas remained seated at the table with the bracelets and flyers.
Ordonez was the second person to walk out of the room. She took neither a bracelet nor a flyer.
She did not see any other employee take a bracelet although she saw the employee leaving
ahead of her take a flyer. While Ordonez was exiting the training room, Lopez and Barcenas
remained seated behind the bracelet basket.
C. The Discharge of Reyes
On September 20, Reyes’ assigned route included transportation of passenger Jocelyn
Yan (Yan) from a South Pasadena grocery market to her home in San Gabriel. Yan paid the
fare with an Access coupon. During the ride, Yan offered to sell Reyes two coupon books—of
10 tickets each—that she had at her home. Each book had a face value of $22.50. Reyes said
he had only $18 in cash, and Yan agreed to accept that amount. When they arrived at her
home, Yan and Reyes completed the transaction. According to Reyes, he did not count the
coupons in the booklets Yan gave him because at that price he could not lose out if there were
fewer than 10 coupons in each booklet.
Shortly after selling the two coupon books to Reyes, Yan called Respondent's dispatch
office to ask that the books be returned to her. Dispatch transferred the call to Murphy, to whom
Yan repeated the request. Dispatch informed Reyes of Yan’s request. Reyes returned the two
coupon books to Yan that afternoon and retrieved his $18. Neither Yan nor Reyes counted the
coupons inside the booklets during the exchange. According to Reyes he took no coupons from
the booklets while they were in his possession but returned them to Yan in the same condition
as he had obtained them.
A short time later, Murphy telephoned Yan to find out if the books had been returned.
Yan said they had but complained that the first and last coupons from one of the books were
missing. Yan gave Murphy the indentifying numbers of the coupon book along with the letters of
each missing coupon (B43878A and B43878J). Murphy contacted the Los Angeles Regional
Center to determine whether coupons B43878A and B43878J had been issued to Yan and
found they had been. At some point, Murphy checked Reyes’ electronic trip sheet to ascertain
that he had been dispatched for only one trip with Yan.
When Reyes returned to the yard on September 20, Murphy and Barratt met him and
asked him to turn over all coupons he had. Reyes gave the supervisors all the coupons he had
collected that day.
According to Reyes, after turning over the coupons to Murphy, he parked his vehicle,
turned in his keys, and left the facility without any further conversation with management about
Yan’s coupons. According to Murphy, the following occurred: after Reyes turned over his fare
bag to her and Barratt, Murphy told him to meet with her in her office when he had completed
his post-route duties. While waiting for Reyes, Murphy and Barratt examined Reyes’ coupons
and found coupons bearing the numbers/letters B43877J, B43878A, and B43878J, the last two
of which matched the numbers/letters of the coupons Yan complained were missing from one of
the books Reyes returned to her. Murphy contacted Frances Gutierrez of the Los Angeles
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Regional Center and, giving her the three coupon numbers/letters, asked to whom they had
been issued. Frances Gutierrez said all three of the coupons had been issued to Yan.
When Reyes joined Murphy and Barratt in Murphy’s office a short time later, he
acknowledged that he had bought and then returned two coupon books to Yan that day.
Murphy told Reyes that Yan complained he had stolen two of her coupons. Reyes denied taking
her coupons. Murphy asked Reyes to explain his possession of three coupons from Yan who
had taken only one trip that day, two of which were from a coupon book he had returned to Yan
that day. Reyes said maybe he had bought two coupons from a driver that morning but could
not remember.9 When Murphy asked how another driver would have coupons from the Yan
coupon book, Reyes said that maybe he, Reyes, had found the coupons in the back of the
vehicle. Murphy told Reyes they would discuss the situation again the following morning.10
Where Reyes’ testimony conflicts with Murphy’s, I credit Murphy. Reyes manner and
demeanor did not inspire confidence in his testimony. I found Reyes to be vague in much of his
testimony and difficult to pin down, as, for example when testifying about whether he had told
Murphy on September 20 that he had purchased coupons from a coworker. Moreover, as noted
below, he was demonstrably mistaken in contending he had received no complaints in his
employment.
Following her interview with Reyes, Murphy decided to terminate him for theft of Yan’s
coupons. On September 22, after finishing his route, Reyes was directed to go to Respondent’s
office where he met with Murphy and Barrett. They told Reyes he was being discharged for
stealing coupons. Murphy gave him a discharge notice titled “Notice of Change in Relationship”
and his final paycheck.
Reyes protested that Respondent was firing him because he was the leader of the union
organization effort, pointing out that in his years of employment, he had never had any
complaints or accidents.11 Murphy denied the accusation, repeating that his discharge was
because he had stolen two coupons.
At the hearing, Reyes denied that he had stolen any of Yan's coupons. Respondent had
never discharged any other driver for theft, but there was no evidence such a disciplinary issue
had ever before arisen among the drivers. A supervisor had been fired for arranging for another
employee to be paid for hours not worked and splitting the money. Respondent has a
progressive disciplinary policy, which, according to the employee handbook, may at
Respondent’s discretion, be exercised “to ensure a fair method of disciplining employees,
[which] when followed…is intended to give employees advance notice, whenever possible, of

9 Barratt confirmed that Reyes said he had bought the coupons from another driver but said
that Reyes did not answer when Barratt asked who the driver was.
10 Where Reyes’ testimony conflicts with Murphy’s, I credit Murphy. Reyes manner and
demeanor did not inspire confidence in his testimony. I found Reyes to be vague in much of his
testimony and difficult to pin down, as, for example when testifying about whether he had told
Murphy on September 20 that he had purchased coupons from a coworker. Moreover, he was
demonstrably mistaken in contending he had received no complaints in his employment.
11 In making this claim, Reyes was apparently mistaken. His May evaluation marked him below
average as to complaints and included a comment that he had many complaints on file, although most
were old and he had improved in that area.
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problems with their conduct or performance in order to provide them an opportunity to correct
any problems."
V. Discussion
A. Independent Violations of Section 8(a)(1) of the Act
1. Statements to Ordonez
The complaint alleges that Bahariance and Keshishian separately threatened an
employee with unspecified reprisals, and that Keshishian also threatened an employee with job
loss, all in violation of Section 8(a)(1) of the Act. General Counsel argues that Respondent
threatened Ordonez when Bahariance told her that employees had drawn a line between
themselves and the Company by their prounion activities and that Respondent and employees
were no longer friends but enemies. General Counsel also argues that Respondent threatened
Ordonez when Keshishian told her that by going to the Union employees had drawn a line and
built a wall between themselves and Respondent and had stabbed Respondent in the back.
Finally, General Counsel argues that Keshishian impliedly threatened Ordonez with job loss by
telling her the company was going to hire new people when the “union thing” was over.
Respondent does not dispute that the above statements, if made, were unlawful; rather
Respondent submits that Ordonez should not be believed. As explained above, I have credited
Ordonez’ testimony.
It is unlawful under Section 8(a)(1) of the Act for an employer to “interfere with, restrain,
or coerce employees in the exercise” of their Section 7 rights. In deciding whether a statement
is threatening or coercive, the Board applies the objective standard of whether the remark would
reasonably tend to interfere with the free exercise of protected employee rights. If it would, it is
unlawful.12
Viewed objectively, Bahariance’s statements to Ordonez implied a threat of harm to
employees who had, by their union support, created a line of enmity between themselves and
Respondent. The only reasonable construction to place on Bahariance’s statements was that
employees, as “enemies” of the Company, faced future reprisals. Such a threat, albeit of
unspecified consequences, had a reasonable tendency to interfere with, restrain, or coerce the
employees in the exercise of protected rights and violated Section 8(a)(1) of the Act.
Keshishian’s statements to Ordonez developed the same concept, i.e., that union activities
created a dividing wall between disloyal employees and their betrayed employer, and likewise
violated Section 8(a)(1) of the Act.
As to Keshishian’s response to Ordonez’ hope that the Union could help her, his
forewarning that when union activity was past Respondent would hire new people, could only
have been understood as an implied threat of future job loss for union supporters. This implied
threat also reasonably tended to interfere with, restrain, or coerce employees in their protected
rights and violated Section 8(a)(1) of the Act.

12 Kenmore Electric Co.., 355 NLRB No. 173, slip op. at 4 (2010); Joseph Chevrolet, 343 NLRB 7, 9
(2004), enfd. 162 Fed. Appx. 541 (6th Cir. 2006). (Citations omitted) Southdown Care Center 308 NLRB
225, 227 (1992); Joy Recovery Technology Corp., 320 NLRB 356, 365 (1995), enfd. 134 F.3d 1307 (7th
Cir. 1998); Miami Systems Corp., 320 NLRB 71, 71 fn. 4 (1995), affd. in relevant part 111 F.3d 1284 (6th
Cir. 1997).
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2. Alleged polling of employees
The complaint alleges that in mid-July Respondent’s labor consultants, Lopez,
Barcenas, and Acosta polled or interrogated employees about their sympathies and support for
the Union. The allegation rests on the facts that following a meeting with employees, Lopez
invited employees to take antiunion bracelets available on a table at which two of the
consultants sat.
Relying on Austal USA,13 General Counsel contends that since, in order to exit the
meeting, employees had to walk by the table where both bracelets and consultants were
positioned, the consultants could readily observe who took a bracelet and who did not. In those
circumstances, General Counsel argues, Respondent unlawfully pressured employees to “make
an observable choice that demonstrate[d] their support for or rejection of the union.” Id.
Respondent argues that in the absence of evidence that the consultants directly offered
bracelets to employees or made coercive statements, General Counsel has not proved the
consultants engaged in unlawful polling or interrogation.
Employers may make antiunion paraphernalia available to employees at a central
location provided that supervisors are uninvolved in the distribution process and there is no
other coercive conduct in connection with the distribution. See Circuit City Stores, 324 NLRB
147,147 (1997); Barton Nelson, Inc., 318 NLRB 712 (1995); Gonzales Packing Co., 304 NLRB
805, 815 (1991). Employers may not create situations in which employees are forced to
disclose their union sentiments. Lott's Electric Co., 293 NLRB 297, 303–304 (1989), enfd. mem.
891 F.2d 281 (3rd Cir. 1989). Thus, employers may not distribute campaign paraphernalia in a
manner that pressures employees to make an observable choice demonstrating their support
for or rejection of the union. A. O. Smith Automotive Products Co., 315 NLRB 994, 994 (1994).
The question is whether in the circumstances of this case, the consultants’ bracelet proffer falls
within the Board’s permissible scenario or its impermissible one.
The factual foundations of Board cases in which the issue has been addressed are
instructive: In A. O. Smith, supra at 994 and 997, a supervisor directly and individually offered
employees “vote-no” buttons while another supervisor proffered “vote-no” shirts and caps to
individual employees as they worked. The Board found that by having its supervisors directly
offer employees antiunion paraphernalia, the employer effectively put employees in a position of
having to accept or reject the employer's proffer and thereby make an observable choice that
would reveal something about their union sentiments. In Circuit City, supra, the store manager
individually distributed to unit members vote-no mugs, many of which were personally inscribed
with the employee’s name. The Board concluded employees would reasonably believe that a
refusal to accept the mug would be construed as a rejection of the employer's position in the
campaign. In Barton Nelson, Inc., supra at 712, supervisors directly distributed antiunion hats to
unit employees. The Board explained the impropriety was not in making the hats available, but
when “supervisors approach individual employees and solicit them to wear antiunion or
proemployer paraphernalia, the employees are forced to make an observable choice that
demonstrates their support for or rejection of the union.” In Gonzales Packing Co., supra at
805, a supervisor violated Section 8(a)(1) by visiting eligible voters at their work stations to ask if
they wanted a “NO” sticker. In Galen Hospital Alaska, Inc. 327 NLRB 876, 876 (1999), a
supervisor placed a plastic bag containing “Vote No” buttons on a counter in an employee
break/office area. The supervisor told nearby unit employees the buttons were available and,

13 356 NLRB No. 65, slip op. at p.53 (2010), citing Circuit City Stores, 324 NLRB 147, 147 (1997).
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after a brief period, returned to her adjacent office. Since the supervisor did not solicit any
employee to take a “Vote No” button or engage in collateral coercive conduct but simply made
buttons available to employees, “no employees were put in the position of having to make an
observable choice demonstrating their support for, or rejection of, the Union.”
After considering all the circumstances of the alleged polling herein, I find the
consultants’ conduct falls more within the purview of Galen Hospital than of A. O. Smith, Circuit
City, Barton Nelson, or Gonzales. Here, Respondent’s consultants, not its supervisors, made
campaign paraphernalia available to employees. Although employees undoubtedly knew the
consultants could, and probably would, report whether employees took the bracelets, it is
unlikely employees would view the consultants as having the direct employment impact that
supervisors have. Even assuming employees perceived the consultants as proxies for their
supervisors, Lopez’ conduct does not rise to the level of that found unlawful in A. O. Smith,
Circuit City, Barton Nelson, and Gonzales. At the end of the consultants’ meeting with
employees, Lopez merely told employees generally that they were free to take a bracelet from
the basket on the table if they wanted one. Lopez made no direct overtures to any employee
and engaged in no collateral coercive conduct.14 Accordingly, I find Respondent did not violate
the Act as alleged in this regard.
B. The Discharge of Reyes
General Counsel contends that Respondent terminated Reyes for engaging in union
activities and that its claimed basis—coupon theft—was pretextual. Respondent argues that
General Counsel has not shown the requisite knowledge and animosity to establish a prima
facie case, or, in the alternative, that Respondent met its burden of proving that Reyes would
have been terminated even in the absence of union activity.
In termination cases turning on employer motivation, the Board applies an analytical
framework that assigns the General Counsel the initial burden of showing that union activity was
a motivating or substantial factor in an adverse employment action. Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The
elements required to support such a showing are the employee’s union activity, employer
knowledge of the activity, and employer animus toward the activity. If the General Counsel
meets the initial burden, the burden of proof then shifts to the employer to show, as an
affirmative defense, that it would have taken the same action even in the absence of the
employee's protected activity. Wright Line at 1089; Alton H. Piester, LLC, 353 NLRB 369 (2008).
While Respondent agrees that Reyes engaged in union activities, Respondent denies
that Murphy, upon whose decision Reyes was terminated, knew of it. It is clear that
Respondent’s road supervisors, admitted agents, knew of Reyes’ union activities.
Respondent’s agents’ knowledge is imputed to Respondent in the absence of evidence that the
agents did not pass on the information to higher officials, which evidence is not present here.15
See State Plaza, Inc., 347 NLRB 755, 756–757 (2006). As to the existence of union animus,

14 Respondent points out that the consultants may or may not have remained in positions to observe if
employees other than Ordonez and the employee who exited before her chose to take bracelets. For
purposes of this discussion, I have assumed that Lopez and Barcenas remained seated behind the bracelet
basket during the exit of all employees.
15 Murphy’s general denial of knowledge does not establish a persuasive evidentiary basis
for rejecting an imputation of knowledge.
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such was demonstrated by the unlawful threats Bahariance and Keshishian, upper level
managers, made to Ordonez.
General Counsel met his initial burden under Wright Line by showing Reyes’ union
activity, Respondent’s knowledge of it, and Respondent’s animus toward it. The burden of proof
therefore shifts to Respondent to show, as an affirmative defense, that it would have taken the
same action against Reyes even in the absence of his protected activity.
Respondent contends it discharged Reyes because he stole Access coupons from a
client. In order to meet its shifted Wright Line burden, the Respondent “must show that it had a
reasonable belief that [Reyes] committed the offense, and that it acted on that belief when it
discharged [him]." McKesson Drug Co., 337 NLRB 935, 936–937 fn. 7 (2002). After careful
consideration of the evidence, I find Respondent had a reasonable belief that Reyes had
committed an offense that merited termination.
There is apparently no dispute that Yan complained to the dispatcher and Murphy that
Reyes had stolen two of her Access vouchers. Rather, General Counsel argues that
Respondent failed to produce nonhearsay evidence to prove Reyes misappropriated Yan’s
vouchers. Respondent does not have to prove Reyes’ guilt; Respondent only has to prove its
reasonable belief that Reyes engaged in misconduct, which misconduct then triggered the
discharge.16 Respondent presented credible evidence of Yan’s complaint, of Murphy’s
investigation into that complaint, whereby she established ownership of the disputed vouchers,
and of Reyes’ failure to explain how the disputed vouchers came to be in his fare bag.17 Under
those circumstances, it was not unreasonable for Murphy to believe that Reyes had, in fact,
filched Yan’s vouchers.
General Counsel argues that the severity of the disciplinary penalty imposed on Reyes
demonstrates discriminatory motive and pretext. While termination is admittedly the harshest
discipline an employer can mete, it is not the role of the administrative law judge to second
guess the degree of punishment an employer thinks warranted. There is no question that an
employer could reasonably view theft as a critical infraction of company rules, and General
Counsel has shown no disparate disciplinary treatment.
After consideration of the record as a whole, I find Respondent has met its shifted
burden and has established that it would have taken the same action against Reyes even in the
absence of his protected activity. Accordingly, I shall dismiss those allegations of the complaint
relating to the discharge of Reyes.

16 I reject General Counsel’s apparent argument that Murphy could not have formed a
reasonable belief of Reyes’ guilt without meeting personally with Yan and physically seeing the
coupon booklet from which vouchers were missing. General Counsel further argues that Murphy
should have explored the impropriety of Yan’s conduct in attempting to sell coupon booklets.
However, Yan’s possible wrongdoing can neither justify nor mitigate Reyes’ suspected misconduct
and is therefore irrelevant.
17 General Counsel criticizes Murphy’s investigatory methodology. However, “it is not within
the province of the Board to tell an employer how to investigate allegations of employee
misconduct. The fact that an employer does not pursue an investigation in some preferred
manner before imposing discipline does not establish an unlawful motive for the discipline.”
Chartwells, Compass Group, USA, Inc. 342 NLRB 1155, 1158 (2004).
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CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a business affecting commerce
within the meaning of Section 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. Respondent violated Section 8(a)(1) of the Act by impliedly threatening employees with
unspecified reprisals and job loss if they engaged in union activities or supported the Union.
4. The unfair labor practices set forth above affect commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
Remedy
Having found Respondent has engaged in certain unfair labor practices, I find it must be
ordered to cease and desist and to post appropriate notices.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended18
ORDER
San Gabriel Transit, Inc., its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with unspecified reprisals for supporting the Union.
(b) Threatening employees with job loss for supporting the Union.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its facility in El Monte, California,
copies of the attached notice marked “Appendix” in English and in Spanish.19 Copies of
the notice, on forms provided by the Regional Director for Region 21 after being signed
by Respondent's authorized representative, shall be posted by Respondent immediately
upon receipt 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 Respondent to ensure the notices are not altered, defaced, or covered by any
other material. In additional to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily communicates with its

18 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
19 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in
the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS
BOARD” shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES
COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR
RELATIONS BOARD.”
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employees by such means. In the event that, during the pendency of these
proceedings, Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees employed by Respondent
at any time since July 2011.
(b) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to
the steps that Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated: August 1, 2011.
Lana H. Parke
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated 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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT do anything that interferes with these rights. More particularly,
WE WILL NOT threaten to take any adverse action against employees for supporting
Wholesale Delivery Drivers, General Truck Drivers, Chauffeurs, Sales and Industrial Allied
Workers, Teamsters Local 848 (the Union) or any other union.
WE WILL NOT threaten any employee with job loss for supporting the Union or any other union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights stated above.
SAN GABRIEL TRANSIT, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
888 South Figueroa Street, 9th Floor
Los Angeles, California 90017-5449
Hours: 8:30 a.m. to 5 p.m.
213-894-5200.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 213-894-5229.