SAZERAC DISTILLERS, LLC DBA BARTON BRANDS OF CALIFORNIA, INC.

National Labor Relations Board - Administrative Judge Opinions

Jul 13, 2016

21-CA-162489 (N.L.R.B. Jul. 13, 2016)

JD(SF)–30–16
Carson, California
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR-RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
SAZERAC DISTILLERS, LLC d/b/a
BARTON BRANDS OF CALIFORNIA, INC.
and Case 21–CA–162489
FOOD, INDUSTRIAL & BEVERAGE
WAREHOUSE, DRIVERS AND CLERICAL
EMPLOYEES, LOCAL 630, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Cecelia Valentine, Esq., for the General Counsel.
Ernest R. Malone, Jr., Esq. (The Kullman Firm),
for the Respondent.
Renee Sanchez, Esq. (Wohlner, Kaplon, Cutler, Halford
& Rosenfeld), for the Charging Party.
DECISION
Statement of the Case
ARIEL L. SOTOLONGO, Administrative Law Judge. On April 12, 2016, the Regional
Director for Region 21 of the Board issued an amended complaint alleging that Sazerac
Distillers, LLC d/b/a Barton Brands of California, Inc. (Respondent) had violated Section 8(a)
(1) of the Act by denying employee Javier Sanchez’ request for union representation during a
disciplinary meeting, pursuant to the well-established doctrine approved by the Supreme Court in
NLRB v. J. Weingarten, Inc.1 Thereafter, Respondent filed a timely answer, denying the
substantive allegations of the complaint. I presided over this case in Los Angeles, California, on
May 9, 2016.
Findings of Fact
I. Jurisdiction and Labor Organization Status
Respondents admits, and I find, that all material times it has been a limited liability
company with an office and place of business in Carson, California, where it has been engaged in
the business of distilling and bottling distilled spirits. In conducting its business operations

1 420 U.S. 251 (1975).
JD(SF)–30–16
2
during the 12-month period ending on September 30, 2015, Respondent purchased and received
at its Carson facility goods and services valued in Excess of $50,000 directly from points outside
the State of California. Accordingly, I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
5
Respondent also admits, and I find that at all material times, Food, Industrial &Beverage
Warehouse, Drivers and Clerical Employees Local 630, International Brotherhood of Teamsters
(Union or Charging Party) has been a labor organization within the meaning of Section 2(5) of
the Act.
10
II. The Alleged Unfair Labor Practice(s)
A. Backgrounds Facts2
As briefly described above, Respondent processes and distils alcohol into spirits and 15
other beverages, and the alcohol is delivered or loaded in tanker trucks at the facility. The events
that are the subject of the complaint took place in July, 2015.3 At the time, Erik Batcke was
Respondent’s processing supervisor. His immediate supervisor was Jose Quinto, the assistant
plant manager. Also during this time period, Javier Sanchez was an employee of Respondent
working in the processing department, and his immediate supervisor was Batcke. Respondent 20
and the Union are parties to a collective-bargaining agreement covering the employees of a
certain bargaining unit, including Sanchez.
The Union had two shop stewards at the facility, chief shop steward, Raquel Avila, who
worked in the shipping department, and shop steward Miguel Ramirez, who worked in the 25
processing department, the same department as Sanchez and Batcke. These backgrounds facts
are not in dispute.

2 The General Counsel has made an unopposed motion to correct the transcript, which I grant, in the following
manner:
Page No. Line No. Current Incorrect
transcription
Transcript should
instead read
15 16 we're were
22 14 that respond were assigned
24 17 that he if you
29 5 something smoking
54 17 August 15th August 13th
63 21 extracting its drafting
65 18 yourself among your testimony with
78 20 distinguish extinguish
90 4 we're we've
94 13 her him
94 17 policy according problem stipulating
3 All dates hereinafter shall be in calendar year 2015, unless otherwise indicated.
JD(SF)–30–16
3
It is also undisputed that on July 28, about 1:30 in the afternoon, Sanchez took a break in
an outside (yard) area of the facility, near where some tanker trucks were parked, during which
he smoked a cigarette. Likewise, it is undisputed that Batcke observed Sanchez smoking in this
area, and that Sanchez saw Batcke observing him. With this background, I will discuss the
testimony about the events that followed.5
B. The Events on July 28
Sanchez testified that on July 28, about 1:45 p.m., Batcke approached him in the “tank
room” where he was working and said, “I hate to do this but grab your personal belongings and 10
follow” (him) to the conference room, which was by the front office on the other side of the
facility from the processing department. According to Sanchez, Batcke did not tell him what this
was about, and did not say anything else while they made their way to the conference room.
Sanchez testified that when they arrived at the conference room, Batcke said that if he wanted to
call a shop steward, to do so now. Sanchez asked Batcke to call “her” (meaning Avila, the chief 15
shop steward), for him. Batcke then left the room, and came back a few minutes later with
Quinto, the assistant plant manager, who walked in right behind Batcke. According to Sanchez,
Batcke (or Quinto) said that Avila “was busy” and hence could not come.4 Batcke asked
Sanchez, in Quinto’s presence, why he thought it was OK to smoke during company time.
Sanchez replied that he was on break at the time. Batcke then asked Sanchez why he had been 20
smoking next to the tanker truck, to which Sanchez replied that he was far away from the truck
and that the truck was not connected at the time.5 Batcke replied that this was “outside of his
comfort zone.” According to Sanchez, Quinto then informed him that he was suspended until
further notice, and testified that Batcke then walked him out of the facility. (Tr. 17–25; 26–30.)
25
In response to specific questions by the General Counsel about this, Sanchez testified that
at no time during this meeting neither Batcke nor Quinto offered to postpone the meeting until a
steward could be present, or offered to get shop steward Ramirez (instead of Avila), or asked him
if he still wanted to proceed with the meeting without a shop steward. (Tr. 24.) During cross-
examination, Sanchez initially admitted that during their meeting Batcke had said that he had 30
observed him smoking (Tr. 37), then denied that Batcke had done so (Tr. 40), only to concede
that he had stated in his Board affidavit that indeed Batcke had said he had seen him (Tr. 40).
Additionally, asked if he had filed a grievance to protest the fact that he had been denied union
representation during the July 28 meeting, Sanchez testified that he had indeed filed such a
grievance (Tr. 41). Respondent introduced the grievance in question into the record, filed on 35
July 30, 2 days after the meeting. The grievance, written by Sanchez himself, simply says that
“the discipline is inconsistent of (sic) the offense,” and requests, as a remedy, to be made whole
under the collective-bargaining agreement. The grievance says nothing about being denied the
right to a shop steward. (R. Exh. 1). It is also noteworthy that Sanchez testified that he spoke by
phone with Avila on July 28, after his meeting with Batcke and Quinto, and that Avila had 40

4 I note that initially Sanchez testified that it was Quinto who informed him, upon arriving at the conference room,
that Avila was busy and could not come (Tr. 19), but later changed his testimony to state that it was Batcke who had
so informed him. (Tr. 23; 28–29).
5 By his testimony that the truck was not “connected” at the time, Sanchez was apparently alluding to the fact that
no hoses were attached to the tanker truck to load or unload the alcohol cargo.
JD(SF)–30–16
4
confirmed that she had been called to come to the meeting but did not come because she was
“busy” (Tr. 61). Avila did not testify.
Quinto testified that he worked for Respondent from 1999 until January 2016, when he
left to work for another employer. According to Quinto, in the early afternoon of July 28 Batcke 5
came into his office to inform him that he had “caught” Sanchez smoking in a nonsmoking area
where highly flammable alcohol is unloaded. Quinto instructed Batcke to bring Sanchez to the
front office, so that he (Quinto) could “verify” the incident. Batcke brought Sanchez into the
conference room, and then went to get Quinto, who then followed Batcke into the conference
room. Once in the conference room, Quinto testified, Batcke stated that he had caught Sanchez 10
smoking in a no-smoking area. Quinto asked Sanchez “is that true?” and Sanchez replied that he
had been on break at the time, and did not deny smoking in the area. Quinto then suspended
Sanchez. Quinto testified that Sanchez never asked for union representation, nor that he was
ever denied union representation. (Tr. 67–71.)6
15
Batcke testified that as processing supervisor, he was Sanchez’ immediate supervisor
during the events in question. On July 28, around 1:30-1:40 p.m., Batcke testified, he saw
Sanchez smoking in a hazardous material unloading zone. He phoned Quinto to report what he
had observed, and Quinto directed him to bring Sanchez to the front office.7 He then went to get
Sanchez, telling him that he needed to come to the conference room. According to Batcke, he 20
and Sanchez did not talk on their way to the conference room. When they arrived there, Batcke
told Sanchez to wait there, while he went to get Quinto. According to Batcke, he did not say
anything else to Sanchez before he left to get Quinto, and specifically did not say anything to
Sanchez about union representation.8 He then left to get Quinto, and they returned together a
few minutes later. Batcke then proceeded to tell Quinto, in Sanchez’ presence, that he had seen 25
Sanchez smoking in a hazardous area. Quinto asked Sanchez if this was true. There was some
discussion as to whether Sanchez had actually been on break, and Sanchez pointed out he had
taken a late break. Sanchez did not deny smoking in the area, but stated that he did not know he
could not smoke in that area. Batcke informed Quinto that in his opinion Sanchez’ conduct had
been unsafe and unacceptable, and opined that he should not return to work that day. Quinto 30
then suspended Sanchez. Batcke denied accompanying Sanchez out—indeed, he testified he left
the conference room before Sanchez did. (Tr. 77–85; 87–90.) Thereafter, in August, Sanchez
was discharged for the conduct described above, but such discharge is not alleged in the
complaint.
35
In light of the above, the outcome of this dispute turns solely on whose testimony I credit,
because the testimony of Sanchez directly conflicts with that of Quinto and Batcke as to whether

6 Quinto was never asked if he Batcke had said to Sanchez, while they were all in the conference room, that chief
shop steward Avila was busy—as Sanchez had testified.
7 I note that this differs from Quinto’s version, who testified that Batcke had come into his office to report what he
had seen. I do not find this variance to be significant.
8 After counsel had examined and cross-examined Batcke, I specifically asked him if he had said anything to
Sanchez—while in the conference room before he went to get Quinto—about getting a shop steward. Batcke was
equivocal, stating that he did not believe he had, or at least could not remember doing so, although he “may have.”
Nonetheless, he was certain that he had not said anything to Sanchez while they were alone in the conference room
before he left to get Quinto. He also added that he never contacted, or attempted to contact, Avila that day. (Tr. 88–
90.)
JD(SF)–30–16
5
Sanchez asked for, and was denied, union representation. For the reasons discussed below, I find
that Sanchez was not offered, nor requested, union representation during the July 28 meeting.
Discussion and Analysis
5
It is well established that in order to be entitled to union representation under Weingarten,
supra, two criteria must be met: First, the interview in question must be an investigatory
interview which the employee reasonable believes could result in discipline. Second, the
employee must request union representation. Lennox Industries, 244 NLRB 607 (1979); Baton
Rouge Water Works Co., 246 NLRB 995 (1979); Kohl’s Food Co., 249 NLRB 75 (1980). The 10
General Counsel avers that both criteria were met in this instance; Respondent avers that neither
was.
With regard to the first criteria, whether the July 28 meeting at the conference room was
an “investigatory” meeting that Sanchez could reasonably believe could lead to discipline, 15
I conclude that it clearly was. In this regard, I note that even crediting Batcke’s and Quinto’s
version of events, it is evident that no decision to discipline Sanchez had yet been made when
they arrived in the conference room. They both testified that after Batcke informed Quinto that
he had observed Sanchez smoking in a hazardous area, Quinto asked Sanchez if were true,
allowing Sanchez to give his version of events—and allowing him, even if true, to provide 20
mitigating facts. Indeed, it was after Sanchez was provided with this opportunity to explain his
conduct, that Batcke then voiced his recommendation that Sanchez be sent home—a
recommendation that Quinto accepted and expanded upon. Thus, the disciplinary action was not
decided upon until after Sanchez had been interrogated and provided an opportunity to explain,
and after his immediate supervisor provided his recommendation. Moreover, the circumstances 25
clearly would have caused any reasonable employee in Sanchez’ shoes to fear possible
discipline. In this regard I note the interview was conducted in the conference room in the front
office, an area away from the production area where Sanchez works, by two supervisors, one the
assistant plant manager. Finally, I note that Sanchez testified that he had seen Batcke watching
him in the yard while he was smoking, and that Batcke testified that Sanchez had indeed seen 30
him watching at the time. Thus, in these circumstances, by the time Sanchez arrived in the
conference room, and certainly by the time Batcke and Quinto arrived there for the start of the
meeting, fear of discipline was reasonable. Accordingly, I conclude that the July 28 meeting was
an investigatory interview that Sanchez reasonably may have feared could lead to discipline.
35
The second requirement in Weingarten cases —that the employee involved in the
investigatory meeting request union representation—is thus the lynchpin in this case, and a more
problematic issue, fully dependent on whose testimony I credit. I note in this regard, that
Sanchez testified that he did not initially ask for representation, but rather that Batcke offered it
to him, telling him when they arrived at the conference room that if he wanted representation, 40
this was the time to get it. Sanchez then asked Batcke to contact Avila, the chief shop steward.
According to Sanchez, when Batcke arrived in the conference room a few minutes later with
Quinto, he informed Sanchez that Avila “was busy,” and proceeded with the interview. Sanchez
also testified that later that day he contacted Avila, who confirmed that she had been called and
also confirming that she had not come because she had been “busy.” Batcke, on his part, denied 45
that he had advised Sanchez to get union representation, or that Sanchez had asked him to
JD(SF)–30–16
6
contact Avila, although he was somewhat equivocal in his denial. He firmly denied, however,
speaking to Sanchez when they were both alone in the conference room during the brief moment
before he went to get Quinto. Both Batcke and Quinto firmly denied any discussion about union
representation after they both arrived together at the conference room and proceeded with the
meeting.5
The General Counsel argues that the issue turns only on what Sanchez, Batcke and
Quinto said to each other, and nothing more, and that I should credit Sanchez’ testimony that he
was offered—and requested—union representation. In these circumstances, however, the
testimony of Avila—the chief shop steward who Sanchez testified acknowledged to him that she 10
had indeed been contacted to come to the meeting—was not only crucial, but indispensable. Had
she been called to testify, and confirmed that Batcke (or Quinto) had asked her to come to the
meeting, her testimony would have corroborated Sanchez’ testimony and confirmed that he had
requested union representation, as alleged by the General Counsel and Charging Party. Given
Sanchez’ testimony, Avila’s silence is deafening. Accordingly, I must make an adverse 15
inference that had she testified, she would not have corroborated Sanchez’ testimony. This
adverse inference, I conclude, is supported by several factors. First, as a union representative,
Avila would have been expected to testify favorably to the Charging Party’s (and General
Counsel’s) case—if such testimony were true. Secondly, I am highly skeptical that a shop
steward, let alone a chief shop steward as Avila was, having been requested to represent an 20
employee in a Weingarten meeting would have simply responded that she was too “busy,” and
left it at that. This type of conduct by a steward could be seen as callous and irresponsible at
best, and arguably amount to a violation of the steward’s fiduciary duty as union representative,
and I am not inclined to conclude that this is what occurred. This is especially true since there
was another steward in the plant—Ramirez, who worked in Sanchez’ department—who could 25
potentially have attended the meeting in Avila’s stead.9 I find it highly implausible that Avila
would not have at least suggested that Ramirez attend, or failing that, at least not asked for a
short delay in the meeting to advise Sanchez about his options. In short, I find that the scenario
painted by Sanchez is unlikely to have occurred, and that the reason Avila did not testify is that
she would not have corroborated him. Finally, I note that Sanchez’ failure to mention anything 30
regarding Respondent’s refusal to allow him union representation in the grievance he drafted and
filed a couple of days after the incident suggests that this never occurred, which would again
explain Avila’s silence regarding these events.
In these circumstances, and in light of this adverse inference, I cannot credit Sanchez’ 35
testimony that he was advised by Batcke to get union representation, or that he asked Batcke to
contact Avila in response. Conversely, I credit Batcke’s and Quinto’s testimony that the subject
union representation was never brought up by Sanchez or anyone else during the course of the
July 28 meeting. Accordingly, since Sanchez never asked for union representation for or during
the July 28 meeting, his Weingarten rights were not violated, as alleged in the complaint.40

9 There is no evidence that Ramirez was unavailable to represent Sanchez at this meeting.
1. The Respondent, Sazerac Distillers, LLC d/b/a Barton Brands of California, Inc., is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
5
2. The Union, Food, Industrial &Beverage Warehouse, Drivers and Clerical Employees
Local 630, International Brotherhood of Teamsters, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent did not violate the Act in any ma10
On these findings of fact and conclusions of law
case, I issue the following recommended
15
The complaint is dismissed in its entirety.
Dated, Washington, D.C. July 13, 2016
20

25

10 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, these findings,
conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be adopted by the Board,
and all objections to them shall be deemed waived for all purposes
7
Conclusions of Law
nner alleged in the complaint.
and based on the entire record in this
10
ORDER
Ariel L. Sotolongo
Administrative Law Judge
JD(SF)–30–16